CONCEPT OF QUASI DELICT

G.R. No. L-48006

July 8, 1942

FAUSTO BARREDO, petitioner,

vs.
SEVERINO GARCIA and TIMOTEA
ALMARIO, respondents.
Celedonio P. Gloria and Antonio Barredo for petitioner.
Jose G. Advincula for respondents.
BOCOBO, J.:
This case comes up from the Court of Appeals which held
the petitioner herein, Fausto Barredo, liable in damages
for the death of Faustino Garcia caused by the negligence
of Pedro Fontanilla, a taxi driver employed by said Fausto
Barredo.
At about half past one in the morning of May 3, 1936, on
the road between Malabon and Navotas, Province of
Rizal, there was a head-on collision between a taxi of the
Malate Taxicab driven by Pedro Fontanilla and a carretela
guided by Pedro Dimapalis. The carretela was overturned,
and one of its passengers, 16-year-old boy Faustino
Garcia, suffered injuries from which he died two days later.
A criminal action was filed against Fontanilla in the Court
of First Instance of Rizal, and he was convicted and
sentenced to an indeterminate sentence of one year and
one day to two years of prision correccional. The court in
the criminal case granted the petition that the right to bring
a separate civil action be reserved. The Court of Appeals

affirmed the sentence of the lower court in the criminal

case. Severino Garcia and Timotea Almario, parents of
the deceased on March 7, 1939, brought an action in the
Court of First Instance of Manila against Fausto Barredo
as the sole proprietor of the Malate Taxicab and employer
of Pedro Fontanilla. On July 8, 1939, the Court of First
Instance of Manila awarded damages in favor of the
plaintiffs for P2,000 plus legal interest from the date of the
complaint. This decision was modified by the Court of
Appeals by reducing the damages to P1,000 with legal
interest from the time the action was instituted. It is
undisputed that Fontanilla 's negligence was the cause of
the mishap, as he was driving on the wrong side of the
road, and at high speed. As to Barredo's responsibility, the
Court of Appeals found:
... It is admitted that defendant is Fontanilla's
employer. There is proof that he exercised the
diligence of a good father of a family to prevent
damage. (See p. 22, appellant's brief.) In fact it is
shown he was careless in employing Fontanilla who
had been caught several times for violation of the
Automobile Law and speeding (Exhibit A) violation
which appeared in the records of the Bureau of Public
Works available to be public and to himself.
Therefore, he must indemnify plaintiffs under the
provisions of article 1903 of the Civil Code.
The main theory of the defense is that the liability of
Fausto Barredo is governed by the Revised Penal Code;
hence, his liability is only subsidiary, and as there has

been no civil action against Pedro Fontanilla, the person

criminally liable, Barredo cannot be held responsible in the
case. The petitioner's brief states on page 10:
... The Court of Appeals holds that the petitioner is
being sued for his failure to exercise all the diligence
of a good father of a family in the selection and
supervision of Pedro Fontanilla to prevent damages
suffered by the respondents. In other words, The
Court of Appeals insists on applying in the case article
1903 of the Civil Code. Article 1903 of the Civil Code
is found in Chapter II, Title 16, Book IV of the Civil
Code. This fact makes said article to a civil liability
arising from a crime as in the case at bar simply
because Chapter II of Title 16 of Book IV of the Civil
Code, in the precise words of article 1903 of the Civil
Code itself, is applicable only to "those (obligations)
arising from wrongful or negligent acts or commission
not punishable by law.
The gist of the decision of the Court of Appeals is
expressed thus:
... We cannot agree to the defendant's contention.
The liability sought to be imposed upon him in this
action is not a civil obligation arising from a felony or a
misdemeanor (the crime of Pedro Fontanilla,), but an
obligation imposed in article 1903 of the Civil Code by
reason of his negligence in the selection or
supervision of his servant or employee.

The pivotal question in this case is whether the plaintiffs

may bring this separate civil action against Fausto
Barredo, thus making him primarily and directly,
responsible under article 1903 of the Civil Code as an
employer of Pedro Fontanilla. The defendant maintains
that Fontanilla's negligence being punishable by the Penal
Code, his (defendant's) liability as an employer is only
subsidiary, according to said Penal code, but Fontanilla
has not been sued in a civil action and his property has
not been exhausted. To decide the main issue, we must
cut through the tangle that has, in the minds of many
confused and jumbled together delitos and cuasi delitos,
or crimes under the Penal Code and fault or negligence
under articles 1902-1910 of the Civil Code. This should be
done, because justice may be lost in a labyrinth, unless
principles and remedies are distinctly envisaged.
Fortunately, we are aided in our inquiry by the luminous
presentation of the perplexing subject by renown jurists
and we are likewise guided by the decisions of this Court
in previous cases as well as by the solemn clarity of the
consideration in several sentences of the Supreme
Tribunal of Spain.
Authorities support the proposition that a quasi-delict or
"culpa aquiliana " is a separate legal institution under the
Civil Code with a substantivity all its own, and individuality
that is entirely apart and independent from delict or crime.
Upon this principle and on the wording and spirit article
1903 of the Civil Code, the primary and direct
responsibility of employers may be safely anchored.

The pertinent provisions of the Civil Code and Revised

Penal Code are as follows:
CIVIL CODE
ART. 1089 Obligations arise from law, from contracts
and quasi-contracts, and from acts and omissions
which are unlawful or in which any kind of fault or
negligence intervenes.
xxx

xxx

xxx

ART. 1092. Civil obligations arising from felonies or

misdemeanors shall be governed by the provisions of
the Penal Code.
ART. 1093. Those which are derived from acts or
omissions in which fault or negligence, not punishable
by law, intervenes shall be subject to the provisions of
Chapter II, Title XVI of this book.
xxx

xxx

xxx

ART 1902. Any person who by an act or omission

causes damage to another by his fault or negligence
shall be liable for the damage so done.
ART. 1903. The obligation imposed by the next
preceding article is enforcible, not only for personal
acts and omissions, but also for those of persons for
whom another is responsible.

The father and in, case of his death or incapacity, the

mother, are liable for any damages caused by the
minor children who live with them.
Guardians are liable for damages done by minors or
incapacitated persons subject to their authority and
living with them.
Owners or directors of an establishment or business
are equally liable for any damages caused by their
employees while engaged in the branch of the service
in which employed, or on occasion of the performance
of their duties.
The State is subject to the same liability when it acts
through a special agent, but not if the damage shall
have been caused by the official upon whom properly
devolved the duty of doing the act performed, in which
case the provisions of the next preceding article shall
be applicable.
Finally, teachers or directors of arts trades are liable
for any damages caused by their pupils or
apprentices while they are under their custody.
The liability imposed by this article shall cease in case
the persons mentioned therein prove that they are
exercised all the diligence of a good father of a family
to prevent the damage.
ART. 1904. Any person who pays for damage caused
by his employees may recover from the latter what he
may have paid.

REVISED PENAL CODE

ART. 100. Civil liability of a person guilty of felony.
Every person criminally liable for a felony is also civilly
liable.
ART. 101. Rules regarding civil liability in certain
cases. The exemption from criminal liability
established in subdivisions 1, 2, 3, 5, and 6 of article
12 and in subdivision 4 of article 11 of this Code does
not include exemption from civil liability, which shall
be enforced to the following rules:
First. In cases of subdivision, 1, 2 and 3 of article 12
the civil liability for acts committed by any imbecile or
insane person, and by a person under nine years of
age, or by one over nine but under fifteen years of
age, who has acted without discernment shall devolve
upon those having such person under their legal
authority or control, unless it appears that there was
no fault or negligence on their part.
Should there be no person having such insane,
imbecile or minor under his authority, legal
guardianship, or control, or if such person be
insolvent, said insane, imbecile, or minor shall
respond with their own property, excepting property
exempt from execution, in accordance with the civil
law.
Second. In cases falling within subdivision 4 of article
11, the person for whose benefit the harm has been

prevented shall be civilly liable in proportion to the

benefit which they may have received.
The courts shall determine, in their sound discretion, the
proportionate amount for which each one shall be liable.
When the respective shares can not be equitably
determined, even approximately, or when the liability also
attaches to the Government, or to the majority of the
inhabitants of the town, and, in all events, whenever the
damage has been caused with the consent of the
authorities or their agents, indemnification shall be made
in the manner prescribed by special laws or regulations.
Third. In cases falling within subdivisions 5 and 6 of article
12, the persons using violence or causing the fear shall be
primarily liable and secondarily, or, if there be no such
persons, those doing the act shall be liable, saving always
to the latter that part of their property exempt from
execution.
ART. 102. Subsidiary civil liability of innkeepers,
tavern keepers and proprietors of establishment. In
default of persons criminally liable, innkeepers, tavern
keepers, and any other persons or corporation shall
be civilly liable for crimes committed in their
establishments, in all cases where a violation of
municipal ordinances or some general or special
police regulation shall have been committed by them
or their employees.

Innkeepers are also subsidiarily liable for the

restitution of goods taken by robbery or theft within
their houses lodging therein, or the person, or for the
payment of the value thereof, provided that such
guests shall have notified in advance the innkeeper
himself, or the person representing him, of the deposit
of such goods within the inn; and shall furthermore
have followed the directions which such innkeeper or
his representative may have given them with respect
to the care of and vigilance over such goods. No
liability shall attach in case of robbery with violence
against or intimidation against or intimidation of
persons unless committed by the innkeeper's
employees.
ART. 103. Subsidiary civil liability of other persons.
The subsidiary liability established in the next
preceding article shall also apply to employers,
teachers, persons, and corporations engaged in any
kind of industry for felonies committed by their
servants, pupils, workmen, apprentices, or employees
in the discharge of their duties.
xxx

xxx

xxx

ART. 365. Imprudence and negligence. Any

person who, by reckless imprudence, shall commit
any act which, had it been intentional, would
constitute a grave felony, shall suffer the penalty of
arresto mayor in its maximum period to prision
correccional in its minimum period; if it would have
constituted a less grave felony, the penalty of arresto

mayor in its minimum and medium periods shall be

imposed.
Any person who, by simple imprudence or
negligence, shall commit an act which would
otherwise constitute a grave felony, shall suffer the
penalty of arresto mayor in its medium and maximum
periods; if it would have constituted a less serious
felony, the penalty of arresto mayor in its minimum
period shall be imposed."
It will thus be seen that while the terms of articles 1902 of
the Civil Code seem to be broad enough to cover the
driver's negligence in the instant case, nevertheless article
1093 limits cuasi-delitos to acts or omissions "not
punishable by law." But inasmuch as article 365 of the
Revised Penal Code punishes not only reckless but even
simple imprudence or negligence, the fault or negligence
under article 1902 of the Civil Code has apparently been
crowded out. It is this overlapping that makes the
"confusion worse confounded." However, a closer study
shows that such a concurrence of scope in regard to
negligent acts does not destroy the distinction between the
civil liability arising from a crime and the responsibility for
cuasi-delitos or culpa extra-contractual. The same
negligent act causing damages may produce civil liability
arising from a crime under article 100 of the Revised
Penal Code, or create an action for cuasi-delito or culpa
extra-contractual under articles 1902-1910 of the Civil
Code.

The individuality of cuasi-delito or culpa extracontractual looms clear and unmistakable. This legal
institution is of ancient lineage, one of its early ancestors
being the Lex Aquilia in the Roman Law. In fact, in
Spanish legal terminology, this responsibility is often
referred to as culpa aquiliana. The Partidas also
contributed to the genealogy of the present fault or
negligence under the Civil Code; for instance, Law 6, Title
15, of Partida 7, says: "Tenudo es de fazer emienda,
porque, como quier que el non fizo a sabiendas en dao
al otro, pero acaescio por su culpa."
The distinctive nature of cuasi-delitos survives in the Civil
Code. According to article 1089, one of the five sources of
obligations is this legal institution of cuasi-delito or culpa
extra-contractual: "los actos . . . en que intervenga
cualquier genero de culpa o negligencia." Then article
1093 provides that this kind of obligation shall be
governed by Chapter II of Title XVI of Book IV, meaning
articles 1902-0910. This portion of the Civil Code is
exclusively devoted to the legal institution of culpa
aquiliana.
Some of the differences between crimes under the Penal
Code and the culpa aquiliana or cuasi-delito under the
Civil Code are:
1. That crimes affect the public interest, while cuasidelitos are only of private concern.

2. That, consequently, the Penal Code punishes or

corrects the criminal act, while the Civil Code, by means of
indemnification, merely repairs the damage.
3. That delicts are not as broad as quasi-delicts, because
the former are punished only if there is a penal law clearly
covering them, while the latter, cuasi-delitos, include all
acts in which "any king of fault or negligence intervenes."
However, it should be noted that not all violations of the
penal law produce civil responsibility, such as begging in
contravention of ordinances, violation of the game laws,
infraction of the rules of traffic when nobody is hurt. (See
Colin and Capitant, "Curso Elemental de Derecho Civil,"
Vol. 3, p. 728.)
Let us now ascertain what some jurists say on the
separate existence of quasi-delicts and the employer's
primary and direct liability under article 1903 of the Civil
Code.
Dorado Montero in his essay on "Responsibilidad" in the
"Enciclopedia Juridica Espaola" (Vol. XXVII, p. 414)
says:
El concepto juridico de la responsabilidad civil abarca
diversos aspectos y comprende a diferentes
personas. Asi, existe una responsabilidad civil
propiamente dicha, que en ningun casl lleva
aparejada responsabilidad criminal alguna, y otra que
es consecuencia indeclinable de la penal que nace de
todo delito o falta."

The juridical concept of civil responsibility has various

aspects and comprises different persons. Thus, there
is a civil responsibility, properly speaking, which in no
case carries with it any criminal responsibility, and
another which is a necessary consequence of the
penal liability as a result of every felony or
misdemeanor."
Maura, an outstanding authority, was consulted on the
following case: There had been a collision between two
trains belonging respectively to the Ferrocarril Cantabrico
and the Ferrocarril del Norte. An employee of the latter
had been prosecuted in a criminal case, in which the
company had been made a party as subsidiarily
responsible in civil damages. The employee had been
acquitted in the criminal case, and the employer, the
Ferrocarril del Norte, had also been exonerated. The
question asked was whether the Ferrocarril Cantabrico
could still bring a civil action for damages against the
Ferrocarril del Norte. Maura's opinion was in the
affirmative, stating in part (Maura, Dictamenes, Vol. 6, pp.
511-513):
Quedando las cosas asi, a proposito de la realidad
pura y neta de los hechos, todavia menos parece
sostenible que exista cosa juzgada acerca de la
obligacion civil de indemnizar los quebrantos y
menoscabos inferidos por el choque de los trenes. El
titulo en que se funda la accion para demandar el
resarcimiento, no puede confundirse con las
responsabilidades civiles nacidas de delito, siquiera

exista en este, sea el cual sea, una culpa rodeada de

notas agravatorias que motivan sanciones penales,
mas o menos severas. La lesion causada por delito o
falta en los derechos civiles, requiere restituciones,
reparaciones o indemnizaciones, que cual la pena
misma ataen al orden publico; por tal motivo vienen
encomendadas, de ordinario, al Ministerio Fiscal; y
claro es que si por esta via se enmiendan los
quebrantos y menoscabos, el agraviado excusa
procurar el ya conseguido desagravio; pero esta
eventual coincidencia de los efectos, no borra la
diversidad originaria de las acciones civiles para pedir
indemnizacion.
Estas, para el caso actual (prescindiendo de
culpas contractuales, que no vendrian a cuento y que
tiene otro regimen), dimanan, segun el articulo 1902
del Codigo Civil, de toda accion u omision, causante
de daos o perjuicios, en que intervenga culpa o
negligencia. Es trivial que acciones semejantes son
ejercitadas ante los Tribunales de lo civil
cotidianamente, sin que la Justicia punitiva tenga que
mezclarse en los asuntos. Los articulos 18 al 21 y
121 al 128 del Codigo Penal, atentos al espiritu y a
los fines sociales y politicos del mismo, desenvuelven
y ordenan la materia de responsabilidades
civiles nacidas de delito, en terminos separados del
regimen por ley comun de la culpa que se denomina
aquiliana, por alusion a precedentes legislativos
del Corpus Juris. Seria intempestivo un paralelo entre
aquellas ordenaciones, y la de la obligacion de

indemnizar a titulo de culpa civil; pero viene al caso y

es necesaria una de las diferenciaciones que en el tal
paralelo se notarian.
Los articulos 20 y 21 del Codigo Penal, despues de
distribuir a su modo las responsabilidades civiles,
entre los que sean por diversos conceptos culpables
del delito o falta, las hacen extensivas a las empresas
y los establecimientos al servicio de los cuales estan
los delincuentes; pero con caracter subsidiario, o sea,
segun el texto literal, en defecto de los que sean
responsables criminalmente. No coincide en ello el
Codigo Civil, cuyo articulo 1903, dice; La obligacion
que impone el articulo anterior es exigible, no solo por
los actos y omisiones propios, sino por los de
aquellas personas de quienes se debe responder;
personas en la enumeracion de las cuales figuran los
dependientes y empleados de los establecimientos o
empresas, sea por actos del servicio, sea con
ocasion de sus funciones. Por esto acontece, y se
observa en la jurisprudencia, que las empresas,
despues de intervenir en las causas criminales con el
caracter subsidiario de su responsabilidad civil por
razon del delito, son demandadas y
condenadas directa y aisladamente, cuando se trata
de la obligacion, ante los tribunales civiles.
Siendo como se ve, diverso el titulo de esta
obligacion, y formando verdadero postulado de
nuestro regimen judicial la separacion entre justicia
punitiva y tribunales de lo civil, de suerte que tienen

unos y otros normas de fondo en distintos cuerpos

legales, y diferentes modos de proceder, habiendose,
por aadidura, abstenido de asistir al juicio criminal la
Compaia del Ferrocarril Cantabrico, que se reservo
ejercitar sus acciones, parece innegable que la de
indemnizacion por los daos y perjuicios que le irrogo
el choque, no estuvo sub judice ante el Tribunal del
Jurado, ni fue sentenciada, sino que permanecio
intacta, al pronunciarse el fallo de 21 de marzo. Aun
cuando el veredicto no hubiese sido de inculpabilidad,
mostrose mas arriba, que tal accion quedaba
legitimamente reservada para despues del proceso;
pero al declararse que no existio delito, ni
responsabilidad dimanada de delito,
materia unica sobre que tenian jurisdiccion aquellos
juzgadores, se redobla el motivo para la obligacion
civil ex lege, y se patentiza mas y mas que la accion
para pedir su cumplimiento permanece incolume,
extraa a la cosa juzgada.
As things are, apropos of the reality pure and simple
of the facts, it seems less tenable that there should
beres judicata with regard to the civil obligation for
damages on account of the losses caused by the
collision of the trains. The title upon which the action
for reparation is based cannot be confused with the
civil responsibilities born of a crime, because there
exists in the latter, whatever each nature,
a culpa surrounded with aggravating aspects which
give rise to penal measures that are more or less
severe. The injury caused by a felony or

misdemeanor upon civil rights requires restitutions,

reparations, or indemnifications which, like the penalty
itself, affect public order; for this reason, they are
ordinarily entrusted to the office of the prosecuting
attorney; and it is clear that if by this means the
losses and damages are repaired, the injured party no
longer desires to seek another relief; but this
coincidence of effects does not eliminate the peculiar
nature of civil actions to ask for indemnity.
Such civil actions in the present case (without
referring to contractual faults which are not pertinent
and belong to another scope) are derived, according
to article 1902 of the Civil Code, from every act or
omission causing losses and damages in which culpa
or negligence intervenes. It is unimportant that such
actions are every day filed before the civil courts
without the criminal courts interfering therewith.
Articles 18 to 21 and 121 to 128 of the Penal Code,
bearing in mind the spirit and the social and political
purposes of that Code, develop and regulate the
matter of civil responsibilities arising from a crime,
separately from the regime under common law,
of culpa which is known as aquiliana, in accordance
with legislative precedent of theCorpus Juris. It would
be unwarranted to make a detailed comparison
between the former provisions and that regarding the
obligation to indemnify on account of civil culpa; but it
is pertinent and necessary to point out to one of such
differences.

Articles 20 and 21 of the Penal Code, after

distriburing in their own way the civil responsibilities
among those who, for different reasons, are guilty of
felony or misdemeanor, make such civil
responsibilities applicable to enterprises and
establishments for which the guilty parties render
service, but with subsidiary character, that is to say,
according to the wording of the Penal Code, in default
of those who are criminally responsible. In this regard,
the Civil Code does not coincide because article 1903
says: "The obligation imposed by the next preceding
article is demandable, not only for personal acts and
omissions, but also for those of persons for whom
another is responsible." Among the persons
enumerated are the subordinates and employees of
establishments or enterprises, either for acts during
their service or on the occasion of their functions. It is
for this reason that it happens, and it is so observed in
judicial decisions, that the companies or enterprises,
after taking part in the criminal cases because of their
subsidiary civil responsibility by reason of the crime,
are sued and sentenced directly and separately with
regard to theobligation, before the civil courts.
Seeing that the title of this obligation is different, and
the separation between punitive justice and the civil
courts being a true postulate of our judicial system, so
that they have different fundamental norms in different
codes, as well as different modes of procedure, and
inasmuch as the Compaa del Ferrocarril Cantabrico
has abstained from taking part in the criminal case

and has reserved the right to exercise its actions, it

seems undeniable that the action for indemnification
for the losses and damages caused to it by the
collision was not sub judice before the Tribunal del
Jurado, nor was it the subject of a sentence, but it
remained intact when the decision of March 21 was
rendered. Even if the verdict had not been that of
acquittal, it has already been shown that such action
had been legitimately reserved till after the criminal
prosecution; but because of the declaration of the
non-existence of the felony and the non-existence of
the responsibility arising from the crime, which was
the sole subject matter upon which the Tribunal del
Juradohad jurisdiction, there is greater reason for the
civil obligation ex lege, and it becomes clearer that
the action for its enforcement remain intact and is
not res judicata.
Laurent, a jurist who has written a monumental work on
the French Civil Code, on which the Spanish Civil Code is
largely based and whose provisions on cuasidelito or culpa extra-contractual are similar to those of the
Spanish Civil Code, says, referring to article 1384 of the
French Civil Code which corresponds to article 1903,
Spanish Civil Code:
The action can be brought directly against the person
responsible (for another), without including the author
of the act. The action against the principal is
accessory in the sense that it implies the existence of
a prejudicial act committed by the employee, but it is

not subsidiary in the sense that it can not be instituted

till after the judgment against the author of the act or
at least, that it is subsidiary to the principal action; the
action for responsibility (of the employer) is in itself a
principal action. (Laurent, Principles of French Civil
Law, Spanish translation, Vol. 20, pp. 734-735.)
Amandi, in his "Cuestionario del Codigo Civil Reformado"
(Vol. 4, pp. 429, 430), declares that the responsibility of
the employer is principal and not subsidiary. He writes:
Cuestion 1. La responsabilidad declarada en el
articulo 1903 por las acciones u omisiones de
aquellas personas por las que se debe responder, es
subsidiaria? es principal? Para contestar a esta
pregunta es necesario saber, en primer lugar, en que
se funda el precepto legal. Es que realmente se
impone una responsabilidad por una falta ajena? Asi
parece a primera vista; pero semejante afirmacion
seria contraria a la justicia y a la maxima universal,
segun la que las faltas son personales, y cada uno
responde de aquellas que le son imputables. La
responsabilidad de que tratamos se impone con
ocasion de un delito o culpa, pero no por causa de
ellos, sino por causa del causi delito, esto es, de la
imprudencia o de la negligencia del padre, del tutor,
del dueo o director del establecimiento, del maestro,
etc. Cuando cualquiera de las personas que enumera
el articulo citado (menores de edad, incapacitados,
dependientes, aprendices) causan un dao, la ley
presume que el padre, el tutor, el maestro, etc., han

cometido una falta de negligencia para prevenir o

evitar el dao. Esta falta es la que la ley castiga. No
hay, pues, responsabilidad por un hecho ajeno, sino
en la apariencia; en realidad la responsabilidad se
exige por un hecho propio. La idea de que esa
responsabilidad sea subsidiaria es, por lo tanto,
completamente inadmisible.
Question No. 1. Is the responsibility declared in article
1903 for the acts or omissions of those persons for
who one is responsible, subsidiary or principal? In
order to answer this question it is necessary to know,
in the first place, on what the legal provision is based.
Is it true that there is a responsibility for the fault of
another person? It seems so at first sight; but such
assertion would be contrary to justice and to the
universal maxim that all faults are personal, and that
everyone is liable for those faults that can be imputed
to him. The responsibility in question is imposed on
the occasion of a crime or fault, but not because of
the same, but because of the cuasi-delito, that is to
say, the imprudence or negligence of the father,
guardian, proprietor or manager of the establishment,
of the teacher, etc. Whenever anyone of the persons
enumerated in the article referred to (minors,
incapacitated persons, employees, apprentices)
causes any damage, the law presumes that the
father, guardian, teacher, etc. have committed an act
of negligence in not preventing or avoiding the
damage. It is this fault that is condemned by the law.
It is, therefore, only apparent that there is a

responsibility for the act of another; in reality the

responsibility exacted is for one's own act. The idea
that such responsibility is subsidiary is, therefore,
completely inadmissible.
Oyuelos, in his "Digesto: Principios, Doctrina y
Jurisprudencia, Referentes al Codigo Civil Espaol," says
in Vol. VII, p. 743:
Es decir, no responde de hechos ajenos, porque se
responde solo de su propia culpa, doctrina del articulo
1902; mas por excepcion, se responde de la ajena
respecto de aquellas personas con las que media
algun nexo o vinculo, que motiva o razona la
responsabilidad. Esta responsabilidad, es directa o es
subsidiaria? En el orden penal, el Codigo de esta
clase distingue entre menores e incapacitados y los
demas, declarando directa la primera (articulo 19) y
subsidiaria la segunda (articulos 20 y 21); pero en el
orden civil, en el caso del articulo 1903, ha de
entenderse directa, por el tenor del articulo que
impone la responsabilidad precisamente "por los
actos de aquellas personas de quienes se deba
responder."
That is to say, one is not responsible for the acts of
others, because one is liable only for his own faults,
this being the doctrine of article 1902; but, by
exception, one is liable for the acts of those persons
with whom there is a bond or tie which gives rise to
the responsibility. Is this responsibility direct or
subsidiary? In the order of the penal law, the Penal

Code distinguishes between minors and incapacitated

persons on the one hand, and other persons on the
other, declaring that the responsibility for the former is
direct (article 19), and for the latter, subsidiary
(articles 20 and 21); but in the scheme of the civil law,
in the case of article 1903, the responsibility should
be understood as direct, according to the tenor of that
articles, for precisely it imposes responsibility "for the
acts of those persons for whom one should be
responsible."
Coming now to the sentences of the Supreme Tribunal of
Spain, that court has upheld the principles above set forth:
that a quasi-delict or culpa extra-contractual is a separate
and distinct legal institution, independent from the civil
responsibility arising from criminal liability, and that an
employer is, under article 1903 of the Civil Code, primarily
and directly responsible for the negligent acts of his
employee.
One of the most important of those Spanish decisions is
that of October 21, 1910. In that case, Ramon Lafuente
died as the result of having been run over by a street car
owned by the "compaia Electric Madrilea de Traccion."
The conductor was prosecuted in a criminal case but he
was acquitted. Thereupon, the widow filed a civil action
against the street car company, paying for damages in the
amount of 15,000 pesetas. The lower court awarded
damages; so the company appealed to the Supreme
Tribunal, alleging violation of articles 1902 and 1903 of the
Civil Code because by final judgment the non-existence of

fault or negligence had been declared. The Supreme

Court of Spain dismissed the appeal, saying:
Considerando que el primer motivo del recurso se
funda en el equivocado supuesto de que el Tribunal a
quo, al condonar a la compaia Electrica Madrilea al
pago del dao causado con la muerte de Ramon La
fuente Izquierdo, desconoce el valor y efectos
juridicos de la sentencia absolutoria deictada en la
causa criminal que se siguio por el mismo hecho,
cuando es lo cierto que de este han conocido las dos
jurisdicciones bajo diferentes as pectos, y como la de
lo criminal declrao dentro de los limites de su
competencia que el hecho de que se trata no era
constitutivo de delito por no haber mediado descuido
o negligencia graves, lo que no excluye, siendo este
el unico fundamento del fallo absolutorio, el concurso
de la culpa o negligencia no califacadas, fuente de
obligaciones civiles segun el articulo 1902 del Codigo,
y que alcanzan, segun el 1903, netre otras perosnas,
a los Directores de establecimientos o empresas por
los daos causados por sus dependientes en
determinadas condiciones, es manifesto que la de lo
civil, al conocer del mismo hehco baho este ultimo
aspecto y al condenar a la compaia recurrente a la
indemnizacion del dao causado por uno de sus
empleados, lejos de infringer los mencionados textos,
en relacion con el articulo 116 de la Ley de
Enjuciamiento Criminal, se ha atenido estrictamente a
ellos, sin invadir atribuciones ajenas a su jurisdiccion

propia, ni contrariar en lo mas minimo el fallo recaido

en la causa.
Considering that the first ground of the appeal is
based on the mistaken supposition that the trial court,
in sentencing the Compaia Madrilea to the payment
of the damage caused by the death of Ramon
Lafuente Izquierdo, disregards the value and juridical
effects of the sentence of acquittal rendered in the
criminal case instituted on account of the same act,
when it is a fact that the two jurisdictions had taken
cognizance of the same act in its different aspects,
and as the criminal jurisdiction declared within the
limits of its authority that the act in question did not
constitute a felony because there was no grave
carelessness or negligence, and this being the only
basis of acquittal, it does no exclude the co-existence
of fault or negligence which is not qualified, and is a
source of civil obligations according to article 1902 of
the Civil Code, affecting, in accordance with article
1903, among other persons, the managers of
establishments or enterprises by reason of the
damages caused by employees under certain
conditions, it is manifest that the civil jurisdiccion in
taking cognizance of the same act in this latter aspect
and in ordering the company, appellant herein, to pay
an indemnity for the damage caused by one of its
employees, far from violating said legal provisions, in
relation with article 116 of the Law of Criminal
Procedure, strictly followed the same, without
invading attributes which are beyond its own

jurisdiction, and without in any way contradicting the

decision in that cause. (Emphasis supplied.)
It will be noted, as to the case just cited:
First. That the conductor was not sued in a civil case,
either separately or with the street car company. This is
precisely what happens in the present case: the driver,
Fontanilla, has not been sued in a civil action, either alone
or with his employer.
Second. That the conductor had been acquitted of grave
criminal negligence, but the Supreme Tribunal of Spain
said that this did not exclude the co-existence of fault or
negligence, which is not qualified, on the part of the
conductor, under article 1902 of the Civil Code. In the
present case, the taxi driver was found guilty of criminal
negligence, so that if he had even sued for his civil
responsibility arising from the crime, he would have been
held primarily liable for civil damages, and Barredo would
have been held subsidiarily liable for the same. But the
plaintiffs are directly suing Barredo, on his primary
responsibility because of his own presumed negligence
which he did not overcome under article 1903. Thus,
there were two liabilities of Barredo: first, the subsidiary
one because of the civil liability of the taxi driver arising
from the latter's criminal negligence; and, second,
Barredo's primary liability as an employer under article
1903. The plaintiffs were free to choose which course to
take, and they preferred the second remedy. In so doing,
they were acting within their rights. It might be observed in
passing, that the plaintiff choose the more expeditious and

effective method of relief, because Fontanilla was either in

prison, or had just been released, and besides, he was
probably without property which might be seized in
enforcing any judgment against him for damages.
Third. That inasmuch as in the above sentence of October
21, 1910, the employer was held liable civilly,
notwithstanding the acquittal of the employee (the
conductor) in a previous criminal case, with greater reason
should Barredo, the employer in the case at bar, be held
liable for damages in a civil suit filed against him because
his taxi driver had been convicted. The degree of
negligence of the conductor in the Spanish case cited was
less than that of the taxi driver, Fontanilla, because the
former was acquitted in the previous criminal case while
the latter was found guilty of criminal negligence and was
sentenced to an indeterminate sentence of one year and
one day to two years of prision correccional.
(See also Sentence of February 19, 1902, which is similar
to the one above quoted.)
In the Sentence of the Supreme Court of Spain, dated
February 14, 1919, an action was brought against a
railroad company for damages because the station agent,
employed by the company, had unjustly andfraudulently,
refused to deliver certain articles consigned to the plaintiff.
The Supreme Court of Spain held that this action was
properly under article 1902 of the Civil Code, the court
saying:

Considerando que la sentencia discutida reconoce,

en virtud de los hechos que consigna con relacion a
las pruebas del pleito: 1., que las expediciones
facturadas por la compaia ferroviaria a la
consignacion del actor de las vasijas vacias que en
su demanda relacionan tenian como fin el que este
las devolviera a sus remitentes con vinos y alcoholes;
2., que llegadas a su destino tales mercanias no se
quisieron entregar a dicho consignatario por el jefe de
la estacion sin motivo justificado y con intencion
dolosa, y 3., que la falta de entrega de estas
expediciones al tiempo de reclamarlas el demandante
le originaron daos y perjuicios en cantidad de
bastante importancia como expendedor al por mayor
que era de vinos y alcoholes por las ganancias que
dejo de obtener al verse privado de servir los pedidos
que se le habian hecho por los remitentes en los
envases:
Considerando que sobre esta base hay necesidad de
estimar los cuatro motivos que integran este recurso,
porque la demanda inicial del pleito a que se contrae
no contiene accion que nazca del incumplimiento del
contrato de transporte, toda vez que no se funda en
el retraso de la llegada de las mercancias ni de
ningun otro vinculo contractual entre las partes
contendientes, careciendo, por tanto, de aplicacion el
articulo 371 del Codigo de Comercio, en que
principalmente descansa el fallo recurrido, sino que
se limita a pedir la reparaction de los daos y
perjuicios producidos en el patrimonio del actor por la

injustificada y dolosa negativa del porteador a la

entrega de las mercancias a su nombre consignadas,
segun lo reconoce la sentencia, y cuya
responsabilidad esta claramente sancionada en el
articulo 1902 del Codigo Civil, que obliga por el
siguiente a la Compaia demandada como ligada con
el causante de aquellos por relaciones de caracter
economico y de jurarquia administrativa.
Considering that the sentence, in question
recognizes, in virtue of the facts which it declares, in
relation to the evidence in the case: (1) that the
invoice issued by the railroad company in favor of the
plaintiff contemplated that the empty receptacles
referred to in the complaint should be returned to the
consignors with wines and liquors; (2) that when the
said merchandise reached their destination, their
delivery to the consignee was refused by the station
agent without justification and with fraudulent intent,
and (3) that the lack of delivery of these goods when
they were demanded by the plaintiff caused him
losses and damages of considerable importance, as
he was a wholesale vendor of wines and liquors and
he failed to realize the profits when he was unable to
fill the orders sent to him by the consignors of the
receptacles:
Considering that upon this basis there is need of
upholding the four assignments of error, as the
original complaint did not contain any cause of action
arising from non-fulfillment of a contract of

transportation, because the action was not based on

the delay of the goods nor on any contractual relation
between the parties litigant and, therefore, article 371
of the Code of Commerce, on which the decision
appealed from is based, is not applicable; but it limits
to asking for reparation for losses and damages
produced on the patrimony of the plaintiff on account
of the unjustified and fraudulent refusal of the carrier
to deliver the goods consigned to the plaintiff as
stated by the sentence, and the carrier's
responsibility is clearly laid down in article 1902 of the
Civil Code which binds, in virtue of the next article, the
defendant company, because the latter is connected
with the person who caused the damage by relations
of economic character and by administrative
hierarchy. (Emphasis supplied.)
The above case is pertinent because it shows that the
same act may come under both the Penal Code and the
Civil Code. In that case, the action of the agent was
unjustified and fraudulent and therefore could have been
the subject of a criminal action. And yet, it was held to be
also a proper subject of a civil action under article 1902 of
the Civil Code. It is also to be noted that it was the
employer and not the employee who was being sued.
Let us now examine the cases previously decided by this
Court.
In the leading case of Rakes vs. Atlantic Gulf and Pacific
Co. (7 Phil., 359, 362-365 [year 1907]), the trial court
awarded damages to the plaintiff, a laborer of the

defendant, because the latter had negligently failed to

repair a tramway in consequence of which the rails slid off
while iron was being transported, and caught the plaintiff
whose leg was broken. This Court held:
It is contended by the defendant, as its first defense to
the action that the necessary conclusion from these
collated laws is that the remedy for injuries through
negligence lies only in a criminal action in which the
official criminally responsible must be made primarily
liable and his employer held only subsidiarily to him.
According to this theory the plaintiff should have
procured the arrest of the representative of the
company accountable for not repairing the track, and
on his prosecution a suitable fine should have been
imposed, payable primarily by him and secondarily by
his employer.
This reasoning misconceived the plan of the Spanish
codes upon this subject. Article 1093 of the Civil Code
makes obligations arising from faults or
negligence not punished by the law, subject to the
provisions of Chapter II of Title XVI. Section 1902 of
that chapter reads:
"A person who by an act or omission causes
damage to another when there is fault or
negligence shall be obliged to repair the damage
so done.
"SEC. 1903. The obligation imposed by the
preceeding article is demandable, not only for

personal acts and omissions, but also for those of

the persons for whom they should be
responsible.
"The father, and on his death or incapacity, the
mother, is liable for the damages caused by the
minors who live with them.
xxx

xxx

xxx

"Owners or directors of an establishment or

enterprise are equally liable for the damages
caused by their employees in the service of the
branches in which the latter may be employed or
in the performance of their duties.
xxx

xxx

xxx

"The liability referred to in this article shall cease

when the persons mentioned therein prove that
they employed all the diligence of a good father
of a family to avoid the damage."
As an answer to the argument urged in this particular
action it may be sufficient to point out that nowhere in
our general statutes is the employer penalized for
failure to provide or maintain safe appliances for his
workmen. His obligation therefore is one 'not
punished by the laws' and falls under civil rather than
criminal jurisprudence. But the answer may be a
broader one. We should be reluctant, under any
conditions, to adopt a forced construction of these
scientific codes, such as is proposed by the

defendant, that would rob some of these articles of

effect, would shut out litigants against their will from
the civil courts, would make the assertion of their
rights dependent upon the selection for prosecution of
the proper criminal offender, and render recovery
doubtful by reason of the strict rules of proof
prevailing in criminal actions. Even if these articles
had always stood alone, such a construction would be
unnecessary, but clear light is thrown upon their
meaning by the provisions of the Law of Criminal
Procedure of Spain (Ley de Enjuiciamiento Criminal),
which, though never in actual force in these Islands,
was formerly given a suppletory or explanatory effect.
Under article 111 of this law, both classes of action,
civil and criminal, might be prosecuted jointly or
separately, but while the penal action was pending
the civil was suspended. According to article 112, the
penal action once started, the civil remedy should be
sought therewith, unless it had been waived by the
party injured or been expressly reserved by him for
civil proceedings for the future. If the civil action alone
was prosecuted, arising out of a crime that could be
enforced only on private complaint, the penal action
thereunder should be extinguished. These provisions
are in harmony with those of articles 23 and 133 of
our Penal Code on the same subject.
An examination of this topic might be carried much
further, but the citation of these articles suffices to
show that the civil liability was not intended to be
merged in the criminal nor even to be suspended

thereby, except as expressly provided in the law.

Where an individual is civilly liable for a negligent act
or omission, it is not required that the injured party
should seek out a third person criminally liable whose
prosecution must be a condition precedent to the
enforcement of the civil right.
Under article 20 of the Penal Code the responsibility
of an employer may be regarded as subsidiary in
respect of criminal actions against his employees only
while they are in process of prosecution, or in so far
as they determine the existence of the criminal act
from which liability arises, and his obligation under the
civil law and its enforcement in the civil courts is not
barred thereby unless by the election of the injured
person. Inasmuch as no criminal proceeding had
been instituted, growing our of the accident in
question, the provisions of the Penal Code can not
affect this action. This construction renders it
unnecessary to finally determine here whether this
subsidiary civil liability in penal actions has survived
the laws that fully regulated it or has been abrogated
by the American civil and criminal procedure now in
force in the Philippines.
The difficulty in construing the articles of the code
above cited in this case appears from the briefs
before us to have arisen from the interpretation of the
words of article 1093, "fault or negligence not
punished by law," as applied to the comprehensive
definition of offenses in articles 568 and 590 of the

Penal Code. It has been shown that the liability of an

employer arising out of his relation to his employee
who is the offender is not to be regarded as derived
from negligence punished by the law, within the
meaning of articles 1902 and 1093. More than this,
however, it cannot be said to fall within the class of
acts unpunished by the law, the consequence of
which are regulated by articles 1902 and 1903 of the
Civil Code. The acts to which these articles are
applicable are understood to be those not growing out
of pre-existing duties of the parties to one another.
But where relations already formed give rise to duties,
whether springing from contract or quasi contract,
then breaches of those duties are subject to articles
1101, 1103, and 1104 of the same code. A typical
application of this distinction may be found in the
consequences of a railway accident due to defective
machinery supplied by the employer. His liability to his
employee would arise out of the contract of
employment, that to the passengers out of the
contract for passage, while that to the injured
bystander would originate in the negligent act itself.
In Manzanares vs. Moreta, 38 Phil., 821 (year 1918), the
mother of the 8 of 9-year-old child Salvador Bona brought
a civil action against Moreta to recover damages resulting
from the death of the child, who had been run over by an
automobile driven and managed by the defendant. The
trial court rendered judgment requiring the defendant to
pay the plaintiff the sum of P1,000 as indemnity: This
Court in affirming the judgment, said in part:

If it were true that the defendant, in coming from the

southern part of Solana Street, had to stop his auto
before crossing Real Street, because he had met
vehicles which were going along the latter street or
were coming from the opposite direction along Solana
Street, it is to be believed that, when he again started
to run his auto across said Real Street and to
continue its way along Solana Street northward, he
should have adjusted the speed of the auto which he
was operating until he had fully crossed Real Street
and had completely reached a clear way on Solana
Street. But, as the child was run over by the auto
precisely at the entrance of Solana Street, this
accident could not have occurred if the auto had been
running at a slow speed, aside from the fact that the
defendant, at the moment of crossing Real Street and
entering Solana Street, in a northward direction, could
have seen the child in the act of crossing the latter
street from the sidewalk on the right to that on the left,
and if the accident had occurred in such a way that
after the automobile had run over the body of the
child, and the child's body had already been stretched
out on the ground, the automobile still moved along a
distance of about 2 meters, this circumstance shows
the fact that the automobile entered Solana Street
from Real Street, at a high speed without the
defendant having blown the horn. If these precautions
had been taken by the defendant, the deplorable
accident which caused the death of the child would
not have occurred.

It will be noticed that the defendant in the above case

could have been prosecuted in a criminal case because
his negligence causing the death of the child was
punishable by the Penal Code. Here is therefore a clear
instance of the same act of negligence being a proper
subject-matter either of a criminal action with its
consequent civil liability arising from a crime or of an
entirely separate and independent civil action for fault or
negligence under article 1902 of the Civil Code. Thus, in
this jurisdiction, the separate individually of a cuasidelito or culpa aquiliana under the Civil Code has been
fully and clearly recognized, even with regard to a
negligent act for which the wrongdoer could have been
prosecuted and convicted in a criminal case and for which,
after such a conviction, he could have been sued for this
civil liability arising from his crime.
Years later (in 1930) this Court had another occasion to
apply the same doctrine. In Bernal and Enverso vs. House
and Tacloban Electric & Ice Plant, Ltd., 54 Phil., 327, the
parents of the five-year-old child, Purificacion Bernal,
brought a civil action to recover damages for the child's
death as a result of burns caused by the fault and
negligence of the defendants. On the evening of April 10,
1925, the Good Friday procession was held in Tacloban,
Leyte. Fortunata Enverso with her daughter Purificacion
Bernal had come from another municipality to attend the
same. After the procession the mother and the daughter
with two others were passing along Gran Capitan Street in
front of the offices of the Tacloban Electric & Ice Plant,
Ltd., owned by defendants J. V. House, when an

automobile appeared from the opposite direction. The little

girl, who was slightly ahead of the rest, was so frightened
by the automobile that she turned to run, but unfortunately
she fell into the street gutter where hot water from the
electric plant was flowing. The child died that same night
from the burns. The trial courts dismissed the action
because of the contributory negligence of the plaintiffs. But
this Court held, on appeal, that there was no contributory
negligence, and allowed the parents P1,000 in damages
from J. V. House who at the time of the tragic occurrence
was the holder of the franchise for the electric plant. This
Court said in part:
Although the trial judge made the findings of fact
hereinbefore outlined, he nevertheless was led to
order the dismissal of the action because of the
contributory negligence of the plaintiffs. It is from this
point that a majority of the court depart from the stand
taken by the trial judge. The mother and her child had
a perfect right to be on the principal street of
Tacloban, Leyte, on the evening when the religious
procession was held. There was nothing abnormal in
allowing the child to run along a few paces in advance
of the mother. No one could foresee the coincidence
of an automobile appearing and of a frightened child
running and falling into a ditch filled with hot water.
The doctrine announced in the much debated case of
Rakes vs. Atlantic Gulf and Pacific Co. ([1907]), 7
Phil., 359), still rule. Article 1902 of the Civil Code
must again be enforced. The contributory negligence
of the child and her mother, if any, does not operate

as a bar to recovery, but in its strictest sense could

only result in reduction of the damages.
It is most significant that in the case just cited, this Court
specifically applied article 1902 of the Civil Code. It is thus
that although J. V. House could have been criminally
prosecuted for reckless or simple negligence and not only
punished but also made civilly liable because of his
criminal negligence, nevertheless this Court awarded
damages in an independent civil action for fault or
negligence under article 1902 of the Civil Code.
In Bahia vs. Litonjua and Leynes (30 Phil., 624 [year
1915), the action was for damages for the death of the
plaintiff's daughter alleged to have been caused by the
negligence of the servant in driving an automobile over the
child. It appeared that the cause of the mishap was a
defect in the steering gear. The defendant Leynes had
rented the automobile from the International Garage of
Manila, to be used by him in carrying passengers during
the fiesta of Tuy, Batangas. Leynes was ordered by the
lower court to pay P1,000 as damages to the plaintiff. On
appeal this Court reversed the judgment as to Leynes on
the ground that he had shown that the exercised the care
of a good father of a family, thus overcoming the
presumption of negligence under article 1903. This Court
said:
As to selection, the defendant has clearly shown that
he exercised the care and diligence of a good father
of a family. He obtained the machine from a reputable
garage and it was, so far as appeared, in good

condition. The workmen were likewise selected from a

standard garage, were duly licensed by the
Government in their particular calling, and apparently
thoroughly competent. The machine had been used
but a few hours when the accident occurred and it is
clear from the evidence that the defendant had no
notice, either actual or constructive, of the defective
condition of the steering gear.
The legal aspect of the case was discussed by this Court
thus:
Article 1903 of the Civil Code not only establishes
liability in cases of negligence, but also provides when
the liability shall cease. It says:
"The liability referred to in this article shall cease
when the persons mentioned therein prove that
they employed all the diligence of a good father
of a family to avoid the damage."
From this article two things are apparent: (1) That
when an injury is caused by the negligence of a
servant or employee there instantly arises a
presumption of law that there was negligence on the
part of the matter or employer either in the selection
of the servant or employee, or in supervision over him
after the selection, or both; and (2) that presumption
is juris tantum and not juris et de jure, and
consequently, may be rebutted. It follows necessarily
that if the employer shows to the satisfaction of the
court that in selection and supervision he has

exercised the care and diligence of a good father of a

family, the presumption is overcome and he is relieve
from liability.
This theory bases the responsibility of the master
ultimately on his own negligence and not on that of
his servant.
The doctrine of the case just cited was followed by this
Court in Cerf vs. Medel (33 Phil., 37 [year 1915]). In the
latter case, the complaint alleged that the defendant's
servant had so negligently driven an automobile, which
was operated by defendant as a public vehicle, that said
automobile struck and damaged the plaintiff's motorcycle.
This Court, applying article 1903 and following the rule
in Bahia vs. Litonjua and Leynes, said in part (p. 41) that:
The master is liable for the negligent acts of his
servant where he is the owner or director of a
business or enterprise and the negligent acts are
committed while the servant is engaged in his
master's employment as such owner.
Another case which followed the decision in Bahia vs.
Litonjua and Leynes was Cuison vs. Norton & Harrison
Co., 55 Phil., 18 (year 1930). The latter case was an
action for damages brought by Cuison for the death of his
seven-year-old son Moises. The little boy was on his way
to school with his sister Marciana. Some large pieces of
lumber fell from a truck and pinned the boy underneath,
instantly killing him. Two youths, Telesforo Binoya and
Francisco Bautista, who were working for Ora, an

employee of defendant Norton & Harrison Co., pleaded

guilty to the crime of homicide through reckless negligence
and were sentenced accordingly. This Court, applying
articles 1902 and 1903, held:
The basis of civil law liability is not respondent
superior but the relationship of pater familias. This
theory bases the liability of the master ultimately on
his own negligence and not on that of his servant.
(Bahia vs.Litonjua and Leynes [1915], 30 Phil., 624;
Cangco vs. Manila Railroad Co. [1918], 38 Phil., 768.)
In Walter A. Smith & Co. vs. Cadwallader Gibson Lumber
Co., 55 Phil., 517 (year 1930) the plaintiff brought an
action for damages for the demolition of its wharf, which
had been struck by the steamer Helen C belonging to the
defendant. This Court held (p. 526):
The evidence shows that Captain Lasa at the time the
plaintiff's wharf collapsed was a duly licensed captain,
authorized to navigate and direct a vessel of any
tonnage, and that the appellee contracted his services
because of his reputation as a captain, according to
F. C. Cadwallader. This being so, we are of the
opinion that the presumption of liability against the
defendant has been overcome by the exercise of the
care and diligence of a good father of a family in
selecting Captain Lasa, in accordance with the
doctrines laid down by this court in the cases cited
above, and the defendant is therefore absolved from
all liability.

It is, therefore, seen that the defendant's theory about his

secondary liability is negatived by the six cases above set
forth. He is, on the authority of these cases, primarily and
directly responsible in damages under article 1903, in
relation to article 1902, of the Civil Code.
Let us now take up the Philippine decisions relied upon by
the defendant. We study first, City of Manila vs. Manila
Electric Co., 52 Phil., 586 (year 1928). A collision between
a truck of the City of Manila and a street car of the Manila
Electric Co. took place on June 8, 1925. The truck was
damaged in the amount of P1,788.27. Sixto Eustaquio, the
motorman, was prosecuted for the crime of damage to
property and slight injuries through reckless imprudence.
He was found guilty and sentenced to pay a fine of P900,
to indemnify the City of Manila for P1,788.27, with
subsidiary imprisonment in case of insolvency. Unable to
collect the indemnity from Eustaquio, the City of Manila
filed an action against the Manila Electric Company to
obtain payment, claiming that the defendant was
subsidiarily liable. The main defense was that the
defendant had exercised the diligence of a good father of
a family to prevent the damage. The lower court rendered
judgment in favor of the plaintiff. This Court held, in part,
that this case was governed by the Penal Code, saying:
With this preliminary point out of the way, there is no
escaping the conclusion that the provisions of the
Penal Code govern. The Penal Code in easily
understandable language authorizes the
determination of subsidiary liability. The Civil Code

negatives its application by providing that civil

obligations arising from crimes or misdemeanors shall
be governed by the provisions of the Penal Code. The
conviction of the motorman was a misdemeanor
falling under article 604 of the Penal Code. The act of
the motorman was not a wrongful or negligent act or
omission not punishable by law. Accordingly, the civil
obligation connected up with the Penal Code and not
with article 1903 of the Civil Code. In other words, the
Penal Code affirms its jurisdiction while the Civil Code
negatives its jurisdiction. This is a case of criminal
negligence out of which civil liability arises and not a
case of civil negligence.
xxx

xxx

xxx

Our deduction, therefore, is that the case relates to

the Penal Code and not to the Civil Code. Indeed, as
pointed out by the trial judge, any different ruling
would permit the master to escape scot-free by simply
alleging and proving that the master had exercised all
diligence in the selection and training of its servants to
prevent the damage. That would be a good defense
to a strictly civil action, but might or might not be to a
civil action either as a part of or predicated on
conviction for a crime or misdemeanor. (By way of
parenthesis, it may be said further that the statements
here made are offered to meet the argument
advanced during our deliberations to the effect that
article 0902 of the Civil Code should be disregarded
and codal articles 1093 and 1903 applied.)

It is not clear how the above case could support the

defendant's proposition, because the Court of Appeals
based its decision in the present case on the defendant's
primary responsibility under article 1903 of the Civil Code
and not on his subsidiary liability arising from Fontanilla's
criminal negligence. In other words, the case of City of
Manila vs. Manila Electric Co., supra, is predicated on an
entirely different theory, which is the subsidiary liability of
an employer arising from a criminal act of his employee,
whereas the foundation of the decision of the Court of
Appeals in the present case is the employer's primary
liability under article 1903 of the Civil Code. We have
already seen that this is a proper and independent
remedy.
Arambulo vs. Manila Electric Co. (55 Phil., 75), is another
case invoked by the defendant. A motorman in the employ
of the Manila Electric Company had been convicted o
homicide by simple negligence and sentenced, among
other things, to pay the heirs of the deceased the sum of
P1,000. An action was then brought to enforce the
subsidiary liability of the defendant as employer under the
Penal Code. The defendant attempted to show that it had
exercised the diligence of a good father of a family in
selecting the motorman, and therefore claimed exemption
from civil liability. But this Court held:
In view of the foregoing considerations, we are of
opinion and so hold, (1) that the exemption from civil
liability established in article 1903 of the Civil Code for
all who have acted with the diligence of a good father

of a family, is not applicable to the subsidiary civil

liability provided in article 20 of the Penal Code.
The above case is also extraneous to the theory of the
defendant in the instant case, because the action there
had for its purpose the enforcement of the defendant's
subsidiary liability under the Penal Code, while in the case
at bar, the plaintiff's cause of action is based on the
defendant's primary and direct responsibility under article
1903 of the Civil Code. In fact, the above case destroys
the defendant's contention because that decision
illustrates the principle that the employer's primary
responsibility under article 1903 of the Civil Code is
different in character from his subsidiary liability under the
Penal Code.
In trying to apply the two cases just referred to, counsel for
the defendant has failed to recognize the distinction
between civil liability arising from a crime, which is
governed by the Penal Code, and the responsibility
for cuasi-delito or culpa aquiliana under the Civil Code,
and has likewise failed to give the importance to the latter
type of civil action.
The defendant-petitioner also cites Francisco vs.
Onrubia (46 Phil., 327). That case need not be set forth.
Suffice it to say that the question involved was also civil
liability arising from a crime. Hence, it is as inapplicable as
the two cases above discussed.
The foregoing authorities clearly demonstrate the separate
individuality of cuasi-delitos or culpa aquiliana under the

Civil Code. Specifically they show that there is a distinction

between civil liability arising from criminal negligence
(governed by the Penal Code) and responsibility for fault
or negligence under articles 1902 to 1910 of the Civil
Code, and that the same negligent act may produce either
a civil liability arising from a crime under the Penal Code,
or a separate responsibility for fault or negligence under
articles 1902 to 1910 of the Civil Code. Still more
concretely, the authorities above cited render it
inescapable to conclude that the employer in this case
the defendant-petitioner is primarily and directly liable
under article 1903 of the Civil Code.
The legal provisions, authors, and cases already invoked
should ordinarily be sufficient to dispose of this case. But
inasmuch as we are announcing doctrines that have been
little understood in the past, it might not be inappropriate
to indicate their foundations.
Firstly, the Revised Penal Code in article 365 punishes not
only reckless but also simple negligence. If we were to
hold that articles 1902 to 1910 of the Civil Code refer only
to fault or negligence not punished by law, according to
the literal import of article 1093 of the Civil Code, the legal
institution of culpa aquiliana would have very little scope
and application in actual life. Death or injury to persons
and damage to property through any degree of negligence
even the slightest would have to be indemnified only
through the principle of civil liability arising from a crime. In
such a state of affairs, what sphere would remain
for cuasi-delito or culpa aquiliana? We are loath to impute

to the lawmaker any intention to bring about a situation so

absurd and anomalous. Nor are we, in the interpretation of
the laws, disposed to uphold the letter that killeth rather
than the spirit that giveth life. We will not use the literal
meaning of the law to smother and render almost lifeless a
principle of such ancient origin and such full-grown
development as culpa aquiliana or cuasi-delito, which is
conserved and made enduring in articles 1902 to 1910 of
the Spanish Civil Code.
Secondly, to find the accused guilty in a criminal case,
proof of guilt beyond reasonable doubt is required, while in
a civil case, preponderance of evidence is sufficient to
make the defendant pay in damages. There are numerous
cases of criminal negligence which can not be shown
beyond reasonable doubt, but can be proved by a
preponderance of evidence. In such cases, the defendant
can and should be made responsible in a civil action under
articles 1902 to 1910 of the Civil Code. Otherwise, there
would be many instances of unvindicated civil wrongs. Ubi
jus ibi remedium.
Thirdly, to hold that there is only one way to make
defendant's liability effective, and that is, to sue the driver
and exhaust his (the latter's) property first, would be
tantamount to compelling the plaintiff to follow a devious
and cumbersome method of obtaining relief. True, there is
such a remedy under our laws, but there is also a more
expeditious way, which is based on the primary and direct
responsibility of the defendant under article 1903 of the
Civil Code. Our view of the law is more likely to facilitate

remedy for civil wrongs, because the procedure indicated

by the defendant is wasteful and productive of delay, it
being a matter of common knowledge that professional
drivers of taxis and similar public conveyance usually do
not have sufficient means with which to pay damages.
Why, then, should the plaintiff be required in all cases to
go through this roundabout, unnecessary, and probably
useless procedure? In construing the laws, courts have
endeavored to shorten and facilitate the pathways of right
and justice.
At this juncture, it should be said that the primary and
direct responsibility of employers and their presumed
negligence are principles calculated to protect society.
Workmen and employees should be carefully chosen and
supervised in order to avoid injury to the public. It is the
masters or employers who principally reap the profits
resulting from the services of these servants and
employees. It is but right that they should guarantee the
latter's careful conduct for the personnel and patrimonial
safety of others. As Theilhard has said, "they should
reproach themselves, at least, some for their weakness,
others for their poor selection and all for their negligence."
And according to Manresa, "It is much more equitable and
just that such responsibility should fall upon the principal
or director who could have chosen a careful and prudent
employee, and not upon the injured person who could not
exercise such selection and who used such employee
because of his confidence in the principal or director."
(Vol. 12, p. 622, 2nd Ed.) Many jurists also base this
primary responsibility of the employer on the principle of

representation of the principal by the agent. Thus, Oyuelos

says in the work already cited (Vol. 7, p. 747) that before
third persons the employer and employee "vienen a ser
como una sola personalidad, por refundicion de la del
dependiente en la de quien le emplea y utiliza." ("become
as one personality by the merging of the person of the
employee in that of him who employs and utilizes him.") All
these observations acquire a peculiar force and
significance when it comes to motor accidents, and there
is need of stressing and accentuating the responsibility of
owners of motor vehicles.
Fourthly, because of the broad sweep of the provisions of
both the Penal Code and the Civil Code on this subject,
which has given rise to the overlapping or concurrence of
spheres already discussed, and for lack of understanding
of the character and efficacy of the action for culpa
aquiliana, there has grown up a common practice to seek
damages only by virtue of the civil responsibility arising
from a crime, forgetting that there is another remedy,
which is by invoking articles 1902-1910 of the Civil Code.
Although this habitual method is allowed by our laws, it
has nevertheless rendered practically useless and
nugatory the more expeditious and effective remedy
based onculpa aquiliana or culpa extra-contractual. In the
present case, we are asked to help perpetuate this usual
course. But we believe it is high time we pointed out to the
harm done by such practice and to restore the principle of
responsibility for fault or negligence under articles 1902 et
seq. of the Civil Code to its full rigor. It is high time we
caused the stream of quasi-delict or culpa aquiliana to flow

on its own natural channel, so that its waters may no

longer be diverted into that of a crime under the Penal
Code. This will, it is believed, make for the better
safeguarding of private rights because it re-establishes an
ancient and additional remedy, and for the further reason
that an independent civil action, not depending on the
issues, limitations and results of a criminal prosecution,
and entirely directed by the party wronged or his counsel,
is more likely to secure adequate and efficacious redress.
In view of the foregoing, the judgment of the Court of
Appeals should be and is hereby affirmed, with costs
against the defendant-petitioner.
Yulo, C.J., Moran, Ozaeta and Paras, JJ., concur.

G.R. No. L-24803 May 26, 1977

PEDRO ELCANO and PATRICIA ELCANO, in their
capacity as Ascendants of Agapito Elcano,
deceased,plaintiffs-appellants,
vs.
REGINALD HILL, minor, and MARVIN HILL, as father
and Natural Guardian of said minor, defendantsappellees.
Cruz & Avecilla for appellants.
Marvin R. Hill & Associates for appellees.
BARREDO, J.:
Appeal from the order of the Court of First Instance of
Quezon City dated January 29, 1965 in Civil Case No. Q8102, Pedro Elcano et al. vs. Reginald Hill et al.
dismissing, upon motion to dismiss of defendants, the
complaint of plaintiffs for recovery of damages from
defendant Reginald Hill, a minor, married at the time of the
occurrence, and his father, the defendant Marvin Hill, with
whom he was living and getting subsistence, for the killing
by Reginald of the son of the plaintiffs, named Agapito
Elcano, of which, when criminally prosecuted, the said
accused was acquitted on the ground that his act was not
criminal, because of "lack of intent to kill, coupled with
mistake."
Actually, the motion to dismiss based on the following
grounds:

1. The present action is not only against but a

violation of section 1, Rule 107, which is now
Rule III, of the Revised Rules of Court;
2. The action is barred by a prior judgment which
is now final and or in res-adjudicata;
3. The complaint had no cause of action against
defendant Marvin Hill, because he was relieved
as guardian of the other defendant through
emancipation by marriage.
(P. 23, Record [p. 4, Record on Appeal.])
was first denied by the trial court. It was only upon motion
for reconsideration of the defendants of such denial,
reiterating the above grounds that the following order was
issued:
Considering the motion for reconsideration filed
by the defendants on January 14, 1965 and after
thoroughly examining the arguments therein
contained, the Court finds the same to be
meritorious and well-founded.
WHEREFORE, the Order of this Court on
December 8, 1964 is hereby reconsidered by
ordering the dismissal of the above entitled case.
SO ORDERED.
Quezon City, Philippines, January 29, 1965. (p.
40, Record [p. 21, Record on Appeal.)

Hence, this appeal where plaintiffs-appellants, the

spouses Elcano, are presenting for Our resolution the
following assignment of errors:
THE LOWER COURT ERRED IN DISMISSING
THE CASE BY UPHOLDING THE CLAIM OF
DEFENDANTS THAT I
THE PRESENT ACTION IS NOT ONLY
AGAINST BUT ALSO A VIOLATION OF
SECTION 1, RULE 107, NOW RULE 111, OF
THE REVISED RULES OF COURT, AND THAT
SECTION 3(c) OF RULE 111, RULES OF
COURT IS APPLICABLE;
II
THE ACTION IS BARRED BY A PRIOR
JUDGMENT WHICH IS NOW FINAL OR RESADJUDICTA;
III
THE PRINCIPLES OF QUASI-DELICTS,
ARTICLES 2176 TO 2194 OF THE CIVIL CODE,
ARE INAPPLICABLE IN THE INSTANT CASE;
and
IV
THAT THE COMPLAINT STATES NO CAUSE
OF ACTION AGAINST DEFENDANT MARVIN

HILL BECAUSE HE WAS RELIEVED AS

GUARDIAN OF THE OTHER DEFENDANT
THROUGH EMANCIPATION BY MARRIAGE.
(page 4, Record.)
It appears that for the killing of the son, Agapito, of
plaintiffs-appellants, defendant- appellee Reginald Hill was
prosecuted criminally in Criminal Case No. 5102 of the
Court of First Instance of Quezon City. After due trial, he
was acquitted on the ground that his act was not criminal
because of "lack of intent to kill, coupled with mistake."
Parenthetically, none of the parties has favored Us with a
copy of the decision of acquittal, presumably because
appellants do not dispute that such indeed was the basis
stated in the court's decision. And so, when appellants
filed their complaint against appellees Reginald and his
father, Atty. Marvin Hill, on account of the death of their
son, the appellees filed the motion to dismiss abovereferred to.
As We view the foregoing background of this case, the two
decisive issues presented for Our resolution are:
1. Is the present civil action for damages barred by the
acquittal of Reginald in the criminal case wherein the
action for civil liability, was not reversed?
2. May Article 2180 (2nd and last paragraphs) of the Civil
Code he applied against Atty. Hill, notwithstanding the
undisputed fact that at the time of the occurrence
complained of. Reginald, though a minor, living with and

getting subsistenee from his father, was already legally

married?
The first issue presents no more problem than the need
for a reiteration and further clarification of the dual
character, criminal and civil, of fault or negligence as a
source of obligation which was firmly established in this
jurisdiction in Barredo vs. Garcia, 73 Phil. 607. In that
case, this Court postulated, on the basis of a scholarly
dissertation by Justice Bocobo on the nature of culpa
aquiliana in relation to culpa criminal or delito and
mereculpa or fault, with pertinent citation of decisions of
the Supreme Court of Spain, the works of recognized
civilians, and earlier jurisprudence of our own, that the
same given act can result in civil liability not only under the
Penal Code but also under the Civil Code. Thus, the
opinion holds:
The, above case is pertinent because it shows
that the same act machinist. come under both the
Penal Code and the Civil Code. In that case, the
action of the agent killeth unjustified and
fraudulent and therefore could have been the
subject of a criminal action. And yet, it was held
to be also a proper subject of a civil action under
article 1902 of the Civil Code. It is also to be
noted that it was the employer and not the
employee who was being sued. (pp. 615-616, 73
Phil.). 1
It will be noticed that the defendant in the above
case could have been prosecuted in a criminal

case because his negligence causing the death

of the child was punishable by the Penal Code.
Here is therefore a clear instance of the same act
of negligence being a proper subject matter
either of a criminal action with its consequent civil
liability arising from a crime or of an entirely
separate and independent civil action for fault or
negligence under article 1902 of the Civil Code.
Thus, in this jurisdiction, the separate individuality
of a cuasi-delito or culpa aquiliana, under the
Civil Code has been fully and clearly recognized,
even with regard to a negligent act for which the
wrongdoer could have been prosecuted and
convicted in a criminal case and for which, after
such a conviction, he could have been sued for
this civil liability arising from his crime. (p. 617, 73
Phil.) 2
It is most significant that in the case just cited,
this Court specifically applied article 1902 of the
Civil Code. It is thus that although J. V. House
could have been criminally prosecuted for
reckless or simple negligence and not only
punished but also made civilly liable because of
his criminal negligence, nevertheless this Court
awarded damages in an independent civil action
for fault or negligence under article 1902 of the
Civil Code. (p. 618, 73 Phil.) 3
The legal provisions, authors, and cases already
invoked should ordinarily be sufficient to dispose

of this case. But inasmuch as we are announcing

doctrines that have been little understood, in the
past, it might not he inappropriate to indicate their
foundations.
Firstly, the Revised Penal Code in articles 365
punishes not only reckless but also simple
negligence. If we were to hold that articles 1902
to 1910 of the Civil Code refer only to fault or
negligence not punished by law, accordingly to
the literal import of article 1093 of the Civil Code,
the legal institution of culpa aquiliana would have
very little scope and application in actual life.
Death or injury to persons and damage to
property- through any degree of negligence even the slightest - would have to be Idemnified
only through the principle of civil liability arising
from a crime. In such a state of affairs, what
sphere would remain for cuasi-delito or culpa
aquiliana? We are loath to impute to the
lawmaker any intention to bring about a situation
so absurd and anomalous. Nor are we, in the
interpretation of the laws, disposed to uphold the
letter that killeth rather than the spirit that giveth
life. We will not use the literal meaning of the law
to smother and render almost lifeless a principle
of such ancient origin and such full-grown
development as culpa aquiliana or cuasi-delito,
which is conserved and made enduring in articles
1902 to 1910 of the Spanish Civil Code.

Secondary, to find the accused guilty in a criminal

case, proof of guilt beyond reasonable doubt is
required, while in a civil case, preponderance of
evidence is sufficient to make the defendant pay
in damages. There are numerous cases of
criminal negligence which can not be shown
beyond reasonable doubt, but can be proved by
a preponderance of evidence. In such cases, the
defendant can and should be made responsible
in a civil action under articles 1902 to 1910 of the
Civil Code. Otherwise. there would be many
instances of unvindicated civil wrongs. "Ubi jus
Idemnified remedium." (p. 620,73 Phil.)
Fourthly, because of the broad sweep of the
provisions of both the Penal Code and the Civil
Code on this subject, which has given rise to the
overlapping or concurrence of spheres already
discussed, and for lack of understanding of the
character and efficacy of the action for culpa
aquiliana, there has grown up a common practice
to seek damages only by virtue of the civil
responsibility arising from a crime, forgetting that
there is another remedy, which is by invoking
articles 1902-1910 of the Civil Code. Although
this habitual method is allowed by, our laws, it
has nevertheless rendered practically useless
and nugatory the more expeditious and effective
remedy based on culpa aquiliana or culpa extracontractual. In the present case, we are asked to
help perpetuate this usual course. But we believe

it is high time we pointed out to the harms done

by such practice and to restore the principle of
responsibility for fault or negligence under articles
1902 et seq. of the Civil Code to its full rigor. It is
high time we caused the stream of quasi-delict
or culpa aquiliana to flow on its own natural
channel, so that its waters may no longer be
diverted into that of a crime under the Penal
Code. This will, it is believed, make for the better
safeguarding or private rights because it realtor,
an ancient and additional remedy, and for the
further reason that an independent civil action,
not depending on the issues, limitations and
results of a criminal prosecution, and entirely
directed by the party wronged or his counsel, is
more likely to secure adequate and efficacious
redress. (p. 621, 73 Phil.)
Contrary to an immediate impression one might get upon
a reading of the foregoing excerpts from the opinion in
Garcia that the concurrence of the Penal Code and the
Civil Code therein referred to contemplate only acts of
negligence and not intentional voluntary acts - deeper
reflection would reveal that the thrust of the
pronouncements therein is not so limited, but that in fact it
actually extends to fault or culpa. This can be seen in the
reference made therein to the Sentence of the Supreme
Court of Spain of February 14, 1919, supra, which
involved a case of fraud or estafa, not a negligent act.
Indeed, Article 1093 of the Civil Code of Spain, in force
here at the time of Garcia, provided textually that

obligations "which are derived from acts or omissions in

which fault or negligence, not punishable by law, intervene
shall be the subject of Chapter II, Title XV of this book
(which refers to quasi-delicts.)" And it is precisely the
underline qualification, "not punishable by law", that
Justice Bocobo emphasized could lead to an ultimo
construction or interpretation of the letter of the law that
"killeth, rather than the spirit that giveth lift- hence, the
ruling that "(W)e will not use the literal meaning of the law
to smother and render almost lifeless a principle of such
ancient origin and such full-grown development as culpa
aquiliana or quasi-delito, which is conserved and made
enduring in articles 1902 to 1910 of the Spanish Civil
Code." And so, because Justice Bacobo was Chairman of
the Code Commission that drafted the original text of the
new Civil Code, it is to be noted that the said Code, which
was enacted after the Garcia doctrine, no longer uses the
term, 11 not punishable by law," thereby making it clear
that the concept of culpa aquiliana includes acts which are
criminal in character or in violation of the penal law,
whether voluntary or matter. Thus, the corresponding
provisions to said Article 1093 in the new code, which is
Article 1162, simply says, "Obligations derived from quasidelicto shall be governed by the provisions of Chapter 2,
Title XVII of this Book, (on quasi-delicts) and by special
laws." More precisely, a new provision, Article 2177 of the
new code provides:
ART. 2177. Responsibility for fault or negligence
under the preceding article is entirely separate
and distinct from the civil liability arising from

negligence under the Penal Code. But the

plaintiff cannot recover damages twice for the
same act or omission of the defendant.
According to the Code Commission: "The foregoing
provision (Article 2177) through at first sight startling, is
not so novel or extraordinary when we consider the exact
nature of criminal and civil negligence. The former is a
violation of the criminal law, while the latter is a "culpa
aquiliana" or quasi-delict, of ancient origin, having always
had its own foundation and individuality, separate from
criminal negligence. Such distinction between criminal
negligence and "culpa extracontractual" or "cuasi-delito"
has been sustained by decision of the Supreme Court of
Spain and maintained as clear, sound and perfectly
tenable by Maura, an outstanding Spanish jurist.
Therefore, under the proposed Article 2177, acquittal from
an accusation of criminal negligence, whether on
reasonable doubt or not, shall not be a bar to a
subsequent civil action, not for civil liability arising from
criminal negligence, but for damages due to a quasi-delict
or 'culpa aquiliana'. But said article forestalls a double
recovery.", (Report of the Code) Commission, p. 162.)
Although, again, this Article 2177 does seem to literally
refer to only acts of negligence, the same argument of
Justice Bacobo about construction that upholds "the spirit
that giveth lift- rather than that which is literal that killeth
the intent of the lawmaker should be observed in applying
the same. And considering that the preliminary chapter on
human relations of the new Civil Code definitely

establishes the separability and independence of liability in

a civil action for acts criminal in character (under Articles
29 to 32) from the civil responsibility arising from crime
fixed by Article 100 of the Revised Penal Code, and, in a
sense, the Rules of Court, under Sections 2 and 3 (c),
Rule 111, contemplate also the same separability, it is
"more congruent with the spirit of law, equity and justice,
and more in harmony with modern progress"- to borrow
the felicitous relevant language in Rakes vs. Atlantic. Gulf
and Pacific Co., 7 Phil. 359, to hold, as We do hold, that
Article 2176, where it refers to "fault or negligencia covers
not only acts "not punishable by law" but also acts criminal
in character, whether intentional and voluntary or
negligent. Consequently, a separate civil action lies
against the offender in a criminal act, whether or not he is
criminally prosecuted and found guilty or acquitted,
provided that the offended party is not allowed, if he is
actually charged also criminally, to recover damages on
both scores, and would be entitled in such eventuality only
to the bigger award of the two, assuming the awards made
in the two cases vary. In other words, the extinction of civil
liability referred to in Par. (e) of Section 3, Rule 111, refers
exclusively to civil liability founded on Article 100 of the
Revised Penal Code, whereas the civil liability for the
same act considered as aquasi-delict only and not as a
crime is not estinguished even by a declaration in the
criminal case that the criminal act charged has not
happened or has not been committed by the accused.
Briefly stated, We here hold, in reiteration of Garcia,
that culpa aquiliana includes voluntary and negligent acts
which may be punishable by law.4

It results, therefore, that the acquittal of Reginal Hill in the

criminal case has not extinguished his liability forquasidelict, hence that acquittal is not a bar to the instant action
against him.
Coming now to the second issue about the effect of
Reginald's emancipation by marriage on the possible civil
liability of Atty. Hill, his father, it is also Our considered
opinion that the conclusion of appellees that Atty. Hill is
already free from responsibility cannot be upheld.
While it is true that parental authority is terminated upon
emancipation of the child (Article 327, Civil Code), and
under Article 397, emancipation takes place "by the
marriage of the minor (child)", it is, however, also clear
that pursuant to Article 399, emancipation by marriage of
the minor is not really full or absolute. Thus
"(E)mancipation by marriage or by voluntary concession
shall terminate parental authority over the child's person. It
shall enable the minor to administer his property as though
he were of age, but he cannot borrow money or alienate or
encumber real property without the consent of his father or
mother, or guardian. He can sue and be sued in court only
with the assistance of his father, mother or guardian."
Now under Article 2180, "(T)he obligation imposed by
article 2176 is demandable not only for one's own acts or
omissions, but also for those of persons for whom one is
responsible. The father and, in case of his death or
incapacity, the mother, are responsible. The father and, in
case of his death or incapacity, the mother, are
responsible for the damages caused by the minor children

who live in their company." In the instant case, it is not

controverted that Reginald, although married, was living
with his father and getting subsistence from him at the
time of the occurrence in question. Factually, therefore,
Reginald was still subservient to and dependent on his
father, a situation which is not unusual.
It must be borne in mind that, according to Manresa, the
reason behind the joint and solidary liability of presuncion
with their offending child under Article 2180 is that is the
obligation of the parent to supervise their minor children in
order to prevent them from causing damage to third
persons. 5 On the other hand, the clear implication of
Article 399, in providing that a minor emancipated by
marriage may not, nevertheless, sue or be sued without
the assistance of the parents, is that such emancipation
does not carry with it freedom to enter into transactions or
do any act that can give rise to judicial litigation. (See
Manresa, Id., Vol. II, pp. 766-767, 776.) And surely, killing
someone else invites judicial action. Otherwise stated, the
marriage of a minor child does not relieve the parents of
the duty to see to it that the child, while still a minor, does
not give answerable for the borrowings of money and
alienation or encumbering of real property which cannot
be done by their minor married child without their consent.
(Art. 399; Manresa, supra.)
Accordingly, in Our considered view, Article 2180 applies
to Atty. Hill notwithstanding the emancipation by marriage
of Reginald. However, inasmuch as it is evident that
Reginald is now of age, as a matter of equity, the liability

of Atty. Hill has become milling, subsidiary to that of his

son.
WHEREFORE, the order appealed from is reversed and
the trial court is ordered to proceed in accordance with the
foregoing opinion. Costs against appellees.
Fernando (Chairman), Antonio, and Martin, JJ., concur.
Concepcion Jr., J, is on leave.
Martin, J, was designated to sit in the Second Division.

Separate Opinions

AQUINO, J, concurring:
Article 2176 of the Civil Code comprehends any culpable
act, which is blameworthy, when judged by accepted legal
standards. "The Idea thus expressed is undoubtedly board
enough to include any rational conception of liability for the
tortious acts likely to be developed in any society." (Street,
J. in Daywalt vs. Corporacion de PP. Agustinos Recoletos,
39 Phil. 587, 600). See article 38, Civil Code and the ruling
that "the infant tortfeasor is liable in a civil action to the
injured person in the same manner and to the same extent
as an adult" (27 Am. Jur. 812 cited by Bocobo, J., in
Magtibay vs. Tiangco, 74 Phil. 576, 579).

Separate Opinions
AQUINO, J, concurring:
Article 2176 of the Civil Code comprehends any culpable
act, which is blameworthy, when judged by accepted legal
standards. "The Idea thus expressed is undoubtedly board
enough to include any rational conception of liability for the
tortious acts likely to be developed in any society." (Street,
J. in Daywalt vs. Corporacion de PP. Agustinos Recoletos,
39 Phil. 587, 600). See article 38, Civil Code and the ruling
that "the infant tortfeasor is liable in a civil action to the
injured person in the same manner and to the same extent
as an adult" (27 Am. Jur. 812 cited by Bocobo, J., in
Magtibay vs. Tiangco, 74 Phil. 576, 579).
Footnotes
1 Referring to Sentence of the Supreme Court of
Spain of February 14, 1919.
2 Referring to Manzanares vs. Moreta, 38 Phil.
821.
3 Referring to Bernal et al, vs. House et al., 54
Phil. 327.
4 Parenthetically, Manresa seemingly holds. the
contrary view thus:

"Sin embargo, para no ineurrir en error hay que

tener en cuenta que los lineage. del precepts
contenido en el presente articulo son bastante
mas reducidos, pues no se hallan comprendidos
en el todos los datios que pues tener por causa
la culpa o la negligencia.
"En efecto, examinando detenidamente la
terminos general de la culpa y de la negligencia.
se observe que, tanto en una como en otra de
dichas causas, hay tres generoso o tres especies
distintas, a saber:
1. La que represents una accion u omision
voluntaria por la que results incumplida una
obligacion anteriormente constituida.
2. La que sin existencia de una obligacion
anterior produce un dano o perjuicio que,
teniendo su origen en un hecho ilicito, no reviste
los caracteres de delito o falta; y
3. La que teniendo por origen un hecho que
constituya delito o falta produce una
responsabilidad civil como accesoria de la
responsabilidad criminal.
"La primera de estas tres especies de culpa o
negligencia es siempre accesoria de una
obligacion principal, cuyo incumplimiento da
origen a la terminos especial de la culpa en
materia de contratos, y el eatudio de esta debe

harms al examinar cada contrato, en especial,

como lo hicimos asi, analizando entoces los
peculiares efectos de dicha culpa en cada uno de
ellos.
"La tercera de las especies citadas es accesoria
tambien, pues no puede concebirse su existencia
sin la de un delicto o falts que la produzca. Es
decir, que solo al lado de la responsabilidad
criminal puede supuesto esa responsabilidad civil
y la obligacion proveniente de la culpa, ineurrir
como una consecuencia de la responsabilidad
criminal, y, por consiguente, su examen y
regulacion perusal. al Derecho penal.
"Como consecuencia de ello, results que la unica
especie de culpa y omisiones o negligencia que
puede ser y es meanwhile.' del presente capitulo,
es la separability, o sea la que sin la existencia
de una obligacion anterior, y sin ningun
antecedents contractual, produce un dano o
perjuico que tiene su origen en una accion u
omision culpable solo civilmente; as decir, que
siendo ilicita, no reviste sin embargo, los
caracteres de un delito o falta por no estar
penada por la ley. Y aun dentro de estos lineage
hay que restringir aun mas los terminos o la
materia propria de este articulo, el cual se refiere
unicamente a la culpa o negligencia personates
del obligado, pero no a las que prudencia de
actos o de omisiones de persons., distintas de

este." (pp. 642-643, Vol. XII, Manresa, Codigo

Civil Espanol.)
5 "Nuestro Codigo no ha seguido la escuela
italiana, sino que mas bien se ha instantaneous,
en el criterio de la doctrina full-grown puesto que
impone la obligacion de reparar, el dano causado
en virtud de una presuncion juris tecum de culpa
por parte del que tiene bajo su autoridad o
dependecia al causante del daho, derivada del
hicimos de no haber puesto el cuidado y la
vinculos debida en los actos de sus
subordinados para evitar dicho resultado. Asi es
que, segun el parrafo ultimo del art. 1,903, cesa
dicha responsabilidad cuando se prueba que los
obligados por los actos ajenos emplearon toda la
diligencia de un buen padre de familia. Luego no
es la causa de la obligacion impuesta la
representacion, ni el interes, ni la necesidad de
que haya quienes responda del dano causado
por el que no tiene personalidad in garantias de
specialist. para responsabilidad por siendo sino
el incumplimiento implicito o supuesto de los
deberes de precaucion y de prudencia que
impuesta los vinculos civiles que unicamente al
obligado con las persons., por quienes debe
representacion, el mal causado, Por ese motivo
coloca dicha obligacion entre las que prudencia
de la culpa of negligentj (pp. 670671, Manresa,
Codigo Civil Espanol, Vol. XII.)

G.R. No. 108017 April 3, 1995

MARIA BENITA A. DULAY, in her own behalf and in
behalf of the minor children KRIZTEEN ELIZABETH,
BEVERLY MARIE and NAPOLEON II, all surnamed
DULAY, petitioners,
vs.
THE COURT OF APPEALS, Former Eighth Division,
HON. TEODORO P. REGINO, in his capacity as
Presiding Judge of the Regional Trial Court National
Capital Region, Quezon City, Br. 84, SAFEGUARD
INVESTIGATION AND SECURITY CO., INC., and
SUPERGUARD SECURITY
CORPORATION, respondents.

BIDIN, J.:
This petition for certiorari prays for the reversal of the
decision of the Court of Appeals dated October 29, 1991
in CA-G.R. CV No. 24646 which affirmed the order of the
Regional Trial Court dismissing Civil Case No. Q-89-1751,
and its resolution dated November 17, 1991 denying
herein, petitioner's motion for reconsideration.
The antecedent facts of the case are as follows:
On December 7, 1988, an altercation between Benigno
Torzuela and Atty. Napoleon Dulay occurred at the "Big
Bang Sa Alabang," Alabang Village, Muntinlupa as a result
of which Benigno Torzuela, the security guard on duty at
the said carnival, shot and killed Atty. Napoleon Dulay.

Herein petitioner Maria Benita A. Dulay, widow of the

deceased Napoleon Dulay, in her own behalf and in behalf
of her minor children, filed on February 8, 1989 an action
for damages against Benigno Torzuela and herein private
respondents Safeguard Investigation and Security Co.,
Inc., ("SAFEGUARD") and/or Superguard Security Corp.
("SUPERGUARD"), alleged employers of defendant
Torzuela. The complaint, docketed as Civil Case No. Q89-1751 among others alleges the following:
1. . . .
Defendants SAFEGUARD INVESTIGATION
AND SECURITY CO., INC., (Defendant
Safeguard) and SUPERGUARD SECURITY
CORPORATION (Defendant Superguard) are
corporations duly organized and existing in
accordance with Philippine laws, with offices at
10th Floor, Manufacturers Building, Inc., Plaza
Santa Cruz, Manila. They are impleaded as
alternative defendants for, while the former
appears to be the employer of defendant
BENIGNO TORZUELA (defendant TORZUELA),
the latter impliedly acknowledged responsibility
for the acts of defendant TORZUELA by
extending its sympathies to plaintiffs.
Defendant BENIGNO TORZUELA is of legal age,
an employee of defendant SAFEGUARD and/or
defendant SUPERGUARD and, at the time of the
incident complained of, was under their control
and supervision. . . .

3. On December 7, 1988 at around 8:00 a.m.,

defendant TORZUELA, while he was on duty as
security guard at the "Big Bang sa Alabang,"
Alabang Village, Muntinlupa, Metro Manila shot
and killed NAPOLEON V. DULAY with a .38
caliber revolver belonging to defendant
SAFEGUARD, and/or SUPERGUARD (per
Police Report dated January 7, 1989, copy
attached as Annex A);
4. The incident resulting in the death of
NAPOLEON V. DULAY was due to the
concurring negligence of the defendants.
Defendant TORZUELA'S wanton and reckless
discharge of the firearm issued to him by
defendant SAFEGUARD and/or SUPERGUARD
was the immediate and proximate cause of the
injury, while the negligence of defendant
SAFEGUARD and/or SUPERGUARD consists in
its having failed to exercise the diligence of a
good father of a family in the supervision and
control of its employee to avoid the injury.
xxx xxx xxx
(Rollo, pp. 117-118)
Petitioners prayed for actual, compensatory, moral and
exemplary damages, and attorney's fees. The said Civil
Case No. Q-89-1751 was raffled to Branch 84 of the
Regional Trial Court of Quezon City, presided by
respondent Judge Teodoro Regino.

On March 2, 1989, private respondent SUPERGUARD

filed a Motion to Dismiss on the ground that the complaint
does not state a valid cause of action. SUPERGUARD
claimed that Torzuela's act of shooting Dulay was beyond
the scope of his duties, and that since the alleged act of
shooting was committed with deliberate intent (dolo), the
civil liability therefor is governed by Article 100 of the
Revised Penal Code, which states:
Art. 100. Civil liability of a person guilty of a
felony. Every person criminally liable for a
felony is also civilly liable.
Respondent SUPERGUARD further alleged that a
complaint for damages based on negligence under Article
2176 of the New Civil Code, such as the one filed by
petitioners, cannot lie, since the civil liability under Article
2176 applies only to quasi-offenses under Article 365 of
the Revised Penal Code. In addition, the private
respondent argued that petitioners' filing of the complaint
is premature considering that the conviction of Torzuela in
a criminal case is a condition sine qua non for the
employer's subsidiary liability (Rollo, p. 55-59).
Respondent SAFEGUARD also filed a motion praying that
it be excluded as defendant on the ground that defendant
Torzuela is not one of its employees (Rollo, p. 96).
Petitioners opposed both motions, stating that their cause
of action against the private respondents is based on their
liability under Article 2180 of the New Civil Code, which
provides:

Art. 2180. The obligation imposed by Article 2176

is demandable not only for one's own acts or
omissions, but also for those of persons for
whom one is responsible.
xxx xxx xxx
Employers shall be liable for the damages
caused by their employees and household
helpers acting within the scope of their assigned
tasks, even though the former are not engaged in
any business or an industry.
xxx xxx xxx
(Emphasis supplied)
Petitioners contended that a suit against alternative
defendants is allowed under Rule 3, Section 13 of the
Rules of Court. Therefore, the inclusion of private
respondents as alternative defendants in the complaint is
justified by the following: the Initial Investigation Report
prepared by Pat. Mario Tubon showing that Torzuela is an
employee of SAFEGUARD; and through overt acts,
SUPERGUARD extended its sympathies to petitioners
(Rollo, pp. 64 and 98).
Meanwhile, an Information dated March 21, 1989 charging
Benigno Torzuela with homicide was filed before the
Regional Trial Court of Makati and was docketed as
Criminal Case No. 89-1896.

On April 13, 1989, respondent Judge Regino issued an

order granting SUPERGUARD'S motion to dismiss and
SAFEGUARD'S motion for exclusion as defendant. The
respondent judge held that the complaint did not state
facts necessary or sufficient to constitute a quasi-delict
since it does not mention any negligence on the part of
Torzuela in shooting Napoleon Dulay or that the same was
done in the performance of his duties. Respondent judge
ruled that mere allegations of the concurring negligence of
the defendants (private respondents herein) without
stating the facts showing such negligence are mere
conclusions of law (Rollo, p. 106). Respondent judge also
declared that the complaint was one for damages founded
on crimes punishable under Articles 100 and 103 of the
Revised Penal Code as distinguished from those arising
from, quasi-delict. The dispositive portion of the order
dated April 13, 1989 states:
WHEREFORE, this Court holds that in view of
the material and ultimate facts alleged in the
verified complaint and in accordance with the
applicable law on the matter as well as
precedents laid down by the Supreme Court, the
complaint against the alternative defendants
Superguard Security Corporation and Safeguard
Investigation and Security Co., Inc., must be and
(sic) it is hereby dismissed. (Rollo, p. 110)
The above order was affirmed by the respondent court
and petitioners' motion for reconsideration thereof was
denied.

Petitioners take exception to the assailed decision and

insist that quasi-delicts are not limited to acts of
negligence but also cover acts that are intentional and
voluntary, citing Andamo v. IAC (191 SCRA 195 [1990]).
Thus, petitioners insist that Torzuela' s act of shooting
Napoleon Dulay constitutes a quasi-delict actionable
under Article 2176 of the New Civil Code.
Petitioners further contend that under Article 2180 of the
New Civil Code, private respondents are primarily liable
for their negligence either in the selection or supervision of
their employees. This liability is independent of the
employee's own liability for fault or negligence and is
distinct from the subsidiary civil liability under Article 103
of the Revised Penal Code. The civil action against the
employer may therefore proceed independently of the
criminal action pursuant to Rule 111 Section 3 of the
Rules of Court. Petitioners submit that the question of
whether Torzuela is an employee of respondent
SUPERGUARD or SAFEGUARD would be better resolved
after trial.
Moreover, petitioners argue that Torzuela's act of shooting
Dulay is also actionable under Article 33 of the New Civil
Code, to wit:
Art. 33. In cases of defamation, fraud, and
physical injuries, a civil action for damages,
entirely separate and distinct from the criminal
action, may be brought by the injured party. Such
civil action shall proceed independently of the

criminal prosecution, and shall require only a

preponderance of evidence. (Emphasis supplied)
In the same vein, petitioners cite Section 3, Rule 111 of
the Rules of Court which provides:
Rule 111. . . . .
Sec. 3. When civil action may proceed
independently In the cases provided for in
Articles 32, 33, 34 and 2176 of the Civil Code of
the Philippines, the independent civil action which
has been reserved may be brought by the
offended party, shall proceed independently of
the criminal action, and shall require only a
preponderance of evidence. (Emphasis supplied)
The term "physical injuries" under Article 33 has been held
to include consummated, frustrated and attempted
homicide. Thus, petitioners maintain that Torzuela's prior
conviction is unnecessary since the civil action can
proceed independently of the criminal action. On the other
hand, it is the private respondents' argument that since the
act was not committed with negligence, the petitioners
have no cause of action under Articles 2116 and 2177 of
the New Civil Code. The civil action contemplated in
Article 2177 is not applicable to acts committed with
deliberate intent, but only applies to quasi-offenses under
Article 365 of the Revised Penal Code. Torzuela's act of
shooting Atty. Dulay to death, aside from being purely
personal, was done with deliberate intent and could not
have been part of his duties as security guard. And since

Article 2180 of the New Civil Code covers only: acts done
within the scope of the employee's assigned tasks, the
private respondents cannot be held liable for damages.
We find for petitioners.
It is undisputed that Benigno Torzuela is being prosecuted
for homicide for the fatal shooting of Napoleon Dulay. Rule
111 of the Rules on Criminal Procedure provides:
Sec. 1. Institution of criminal and civil actions.
When a criminal action is instituted, the civil
action for the recovery of civil liability is impliedly
instituted with the criminal action, unless the
offended party waives the civil action , reserves
his right to institute it separately or institutes the
civil action prior to the criminal action.
Such civil action includes recovery of indemnity
under the Revised Penal Code, and damages
under Articles 32, 33, 34, and 2176 of the Civil
Code of the Philippines arising from the same act
or omission of the accused. (Emphasis supplied)
It is well-settled that the filing of an independent civil action
before the prosecution in the criminal action presents
evidence is even far better than a compliance with the
requirement of express reservation (Yakult Philippines v.
Court of Appeals, 190 SCRA 357 [1990]). This is precisely
what the petitioners opted to do in this case. However, the
private respondents opposed the civil action on the ground
that the same is founded on a delict and not on a quasi-

delict as the shooting was not attended by negligence.

What is in dispute therefore is the nature of the petitioner's
cause of action.
The nature of a cause of action is determined by the facts
alleged in the complaint as constituting the cause of action
(Republic v. Estenzo, 158 SCRA 282 [1988]). The purpose
of an action or suit and the law to govern it is to be
determined not by the claim of the party filing the action,
made in his argument or brief, but rather by the complaint
itself, its allegations and prayer for relief. (De Tavera v.
Philippine Tuberculosis Society, 112 SCRA 243 [1982]).
An examination of the complaint in the present case would
show that the plaintiffs, petitioners herein, are invoking
their right to recover damages against the private
respondents for their vicarious responsibility for the injury
caused by Benigno Torzuela's act of shooting and killing
Napoleon Dulay, as stated in paragraphs 1 and 2 of the
complaint.
Article 2176 of the New Civil Code provides:
Art. 2176. Whoever by act or omission causes
damage to another, there being fault or
negligence, is obliged to pay for the damage
done. Such fault or negligence, if there is no preexisting contractual relation between the parties
is called a quasi-delict and is governed by the
provisions of this Chapter.
Contrary to the theory of private respondents, there is no
justification for limiting the scope of Article 2176 of the

Civil Code to acts or omissions resulting from negligence.

Well-entrenched is the doctrine that article 2176 covers
not only acts committed with negligence, but also acts
which are voluntary and intentional. As far back as the
definitive case of Elcano v. Hill (77 SCRA 98 [1977]), this
Court already held that:
. . . Article 2176, where it refers to "fault or
negligence," covers not only acts "not punishable
by law" but also acts criminal in character;
whether intentional and voluntary or negligent.
Consequently, a separate civil action against the
offender in a criminal act, whether or not he is
criminally prosecuted and found guilty or
acquitted, provided that the offended party is not
allowed, if he is actually charged also criminally,
to recover damages on both scores, and would
be entitled in such eventuality only to the bigger
award of the two, assuming the awards made in
the two cases vary. In other words, the extinction
of civil liability referred to in Par. (e) of Section 3,
Rule 111, refers exclusively to civil liability
founded on Article 100 of the Revised Penal
Code, whereas the civil liability for the same act
considered as quasi-delict only and not as a
crime is not extinguished even by a declaration in
the criminal case that the criminal act charged
has not happened or has not been committed by
the accused. Briefly stated, We here hold, in
reiteration of Garcia, that culpa aquiliana includes

voluntary and negligent acts which may be

punishable by law. (Emphasis supplied)
The same doctrine was echoed in the case of Andamo v.
Intermediate Appellate Court (191 SCRA 195 [1990]),
wherein the Court held:
Article 2176, whenever it refers to "fault or
negligence," covers not only acts criminal in
character, whether intentional and voluntary or
negligent. Consequently, a civil action lies
against the offender in a criminal act, whether or
not he is prosecuted or found guilty or acquitted,
provided that the offended party is not allowed, (if
the tortfeasor is actually also charged criminally),
to recover damages on both scores, and would
be entitled in such eventuality only to the bigger
award of the two, assuming the awards made in
the two cases vary. [citing Virata v. Ochoa, 81
SCRA 472] (Emphasis supplied)
Private respondents submit that the word "intentional" in
the Andamo case is inaccurate obiter, and should be read
as "voluntary" since intent cannot be coupled with
negligence as defined by Article 365 of the Revised Penal
Code. In the absence of more substantial reasons, this
Court will not disturb the above doctrine on the coverage
of Article 2176.
Private respondents further aver that Article 33 of the New
Civil Code applies only to injuries intentionally committed
pursuant to the ruling in Marcia v. CA (120 SCRA 193

[1983]), and that the actions for damages allowed

thereunder are ex-delicto. However, the term "physical
injuries" in Article 33 has already been construed to
include bodily injuries causing death (Capuno v. PepsiCola Bottling Co. of the Philippines, 121 Phil. 638 [1965);
Carandang v. Santiago, 97 Phil. 94 [1955]). It is not the
crime of physical injuries defined in the Revised Penal
Code. It includes not only physical injuries but also
consummated, frustrated, and attempted homicide
(Madeja v. Caro, 126 SCRA 293 [1983]). Although in the
Marcia case (supra), it was held that no independent civil
action may be filed under Article 33 where the crime is the
result of criminal negligence, it must be noted however,
that Torzuela, the accused in the case at bar, is charged
with homicide, not with reckless imprudence, whereas the
defendant in Marcia was charged with reckless
imprudence. Therefore, in this case, a civil action based
on Article 33 lies.
Private respondents also contend that their liability is
subsidiary under the Revised Penal Code; and that they
are not liable for Torzuela's act which is beyond the scope
of his duties as a security guard. It having been
established that the instant action is not ex-delicto,
petitioners may proceed directly against Torzuela and the
private respondents. Under Article 2180 of the New Civil
Code as aforequoted, when an injury is caused by the
negligence of the employee, there instantly arises a
presumption of law that there was negligence on the part
of the master or employer either in the selection of the
servant or employee, or in supervision over him after

selection or both (Layugan v. Intermediate Appellate

Court, 167 SCRA 363 [1988]). The liability of the employer
under Article 2180 is direct and immediate; it is not
conditioned upon prior recourse against the negligent
employee and a prior showing of the insolvency of such
employee (Kapalaran Bus Lines v. Coronado, 176 SCRA
792 [1989]). Therefore, it is incumbent upon the private
respondents to prove that they exercised the diligence of a
good father of a family in the selection and supervision of
their employee.
Since Article 2176 covers not only acts of negligence but
also acts which are intentional and voluntary, it was
therefore erroneous on the part of the trial court to dismiss
petitioner's complaint simply because it failed to make
allegations of attendant negligence attributable to private
respondents.
With respect to the issue of whether the complaint at hand
states a sufficient cause of action, the general rule is that
the allegations in a complaint are sufficient to constitute a
cause of action against the defendants if, admitting the
facts alleged, the court can render a valid judgment upon
the same in accordance with the prayer therein. A cause
of action exist if the following elements are present,
namely: (1) a right in favor of the plaintiff by whatever
means and under whatever law it arises or is created; (2)
an obligation on the part of the named defendant to
respect or not to violate such right; and (3) an act or
omission on the part of such defendant violative of the
right of the plaintiff or constituting a breach of the

obligation of the defendant to the plaintiff for which the

latter may maintain an action for recovery of damages (Del
Bros Hotel Corporation v. CA, 210 SCRA 33 [1992]);
Development Bank of the Philippines v. Pundogar, 218
SCRA 118 [1993])
This Court finds, under the foregoing premises, that the
complaint sufficiently alleged an actionable breach on the
part of the defendant Torzuela and respondents
SUPERGUARD and/or SAFEGUARD. It is enough that
the complaint alleged that Benigno Torzuela shot
Napoleon Dulay resulting in the latter's death; that the
shooting occurred while Torzuela was on duty; and that
either SUPERGUARD and/or SAFEGUARD was
Torzuela's employer and responsible for his acts. This
does not operate however, to establish that the
defendants below are liable. Whether or not the shooting
was actually reckless and wanton or attended by
negligence and whether it was actually done within the
scope of Torzuela's duties; whether the private
respondents SUPERGUARD and/or SAFEGUARD failed
to exercise the diligence of a good father of a family; and
whether the defendants are actually liable, are questions
which can be better resolved after trial on the merits where
each party can present evidence to prove their respective
allegations and defenses. In determining whether the
allegations of a complaint are sufficient to support a cause
of action, it must be borne in mind that the complaint does
not have to establish or allege the facts proving the
existence of a cause of action at the outset; this will have
to be done at the trial on the merits of the case (Del Bros

Hotel Corporation v. CA, supra). If the allegations in a

complaint can furnish a sufficient basis by which the
complaint can be maintained, the same should not be
dismissed regardless of the defenses that may be
assessed by the defendants (Rava Dev't. Corp. v. CA, 211
SCRA 152 [1992] citing Consolidated Bank & Trust
Corporation v. Court of Appeals, 197 SCRA 663 [1991]).
To sustain a motion to dismiss for lack of cause of action,
the complaint must show that the claim for relief does not
exist rather than that a claim has been defectively stated,
is ambiguous, indefinite or uncertain (Azur v. Provincial
Board, 27 SCRA 50 [1969]). Since the petitioners clearly
sustained an injury to their rights under the law, it would
be more just to allow them to present evidence of such
injury.
WHEREFORE, premises considered, the petition for
review is hereby GRANTED. The decision of the Court of
Appeals as well as the Order of the Regional Trial Court
dated April 13, 1989 are hereby REVERSED and SET
ASIDE. Civil Case No. Q-89-1751 is remanded to the
Regional Trial Court for trial on the merits. This decision is
immediately executory.
SO ORDERED.
Narvasa, C.J., Regalado, Puno and Mendoza, JJ., concur.

G.R. No. L-35095 August 31, 1973

GERMAN C. GARCIA, LUMINOSA L. GARCIA, and
ESTER FRANCISCO, petitioners,
vs.
THE HONORABLE MARIANO M. FLORIDO OF THE
COURT OF FIRST INSTANCE OF MISAMIS
OCCIDENTAL, MARCELINO INESIN, RICARDO
VAYSON, MACTAN TRANSIT CO., INC., and PEDRO
TUMALA Y DIGAL, respondents.
Paulino A. Conol for petitioners.
Dominador M. Canastra and Wilfredo C. Martinez for
private respondents.
Hon. Mariano M. Florido for and in his own behalf.

ANTONIO, J.:
Appeal by certiorari from the decision of the Court of First
Instance of Misamis Occidental, Branch III, in Civil Case
No. 2850 (German C. Garcia, et al. vs. Marcelino Inesin et
al.) dated October 21, 1971, dismissing petitioners' action
for damages against respondents, Mactan Transit Co.,
Inc. and Pedro Tumala "without prejudice to refiling the
said civil action after conviction of the defendants in the
criminal case filed by the Chief of Police of Sindangan
Zamboanga del Norte", and from the order of said Court
dated January 21, 1972, denying petitioners' motion for
reconsideration.

On August 4, 1971, petitioners, German C. Garcia, Chief

of the Misamis Occidental Hospital, together with his wife,
Luminosa L. Garcia, and Ester Francisco, bookkeeper of
said hospital, hired and boarded a PU car with plate No.
241-8 G Ozamis 71 owned and operated by respondent,
Marcelino Inesin, and driven by respondent, Ricardo
Vayson, for a round-trip from Oroquieta City to
Zamboanga City, for the purpose of attending a
conference of chiefs of government hospitals, hospital
administrative officers, and bookkeepers of Regional
Health Office No. 7 at Zamboanga City. At about 9:30
a.m., while the PU car was negotiating a slight curve on
the national highway at kilometer 21 in Barrio Guisukan,
Sindangan, Zamboanga del Norte, said car collided with
an oncoming passenger bus (No. 25) with plate No. 77-4
W Z.N. 71 owned and operated by the Mactan Transit Co.,
Inc. and driven by defendant, Pedro Tumala. As a result of
the aforesaid collision, petitioners sustained various
physical injuries which necessitated their medical
treatment and hospitalization.
Alleging that both drivers of the PU car and the passenger
bus were at the time of the accident driving their
respective vehicles at a fast clip, in a reckless, grossly
negligent and imprudent manner in gross violation of traffic
rules and without due regard to the safety of the
passengers aboard the PU car, petitioners, German C.
Garcia, Luminosa L. Garcia, and Ester Francisco, filed on
September 1, 1971 with respondent Court of First Instance
of Misamis Occidental an action for damages (Civil Case
No. 2850) against the private respondents, owners and

drivers, respectively, of the PU car and the passenger bus

that figured in the collision, with prayer for preliminary
attachment.
On September 16, 1971, Marcelino Inesin and Ricardo
Vayson filed their answer in the aforementioned Civil Case
No. 2850 admitting the contract of carriage with petitioners
but alleged, by way of defense, that the accident was due
to the negligence and reckless imprudence of the bus
driver, as when Ricardo Vayson, driver of the PU car, saw
the oncoming passenger bus No. 25 coming from the
opposite direction ascending the incline at an excessive
speed, chasing another passenger bus, he had to stop the
PU car in order to give way to the passenger bus, but, in
spite of such precaution, the passenger bus bumped the
PU car, thus causing the accident in question, and,
therefore, said private respondents could not be held liable
for the damages caused on petitioners.
On September 29, 1971, respondents, Mactan Transit
Co., Inc. and Pedro Tumala, filed a motion to dismiss on
three (3) grounds, namely: 1) that the plaintiffs
(petitioners) had no cause of action; 2) that the complaint
carries with it a prayer for attachment but without the
requisite verification, hence defective under the provision
of Sec. 3, Rule 57 of the Rules of Court; and 3) that the
defendants (respondents), Mactan Transit Co., Inc. and its
driver, accused Pedro Tumala, had operated said
passenger bus with maximum care and prudence.
The principal argument advanced in said motion to
dismiss was that the petitioners had no cause of action for

on August 11, 1971, or 20 days before the filing of the

present action for damages, respondent Pedro Tumala
was charged in Criminal Case No. 4960 of the Municipal
Court of Sindangan, Zamboanga del Norte, in a complaint
filed by the Chief of Police for "double serious and less
serious physical injuries through reckless imprudence",
and that, with the filing of the aforesaid criminal case, no
civil action could be filed subsequent thereto unless the
criminal case has been finally adjudicated, pursuant to
Sec. 3 of Rule 111 of the Rules of Court, and, therefore,
the filing of the instant civil action is premature, because
the liability of the employer is merely subsidiary and does
not arise until after final judgment has been rendered
finding the driver, Pedro Tumala guilty of negligence; that
Art. 33 of the New Civil Code, is not applicable because
Art. 33 applied only to the crimes of physical injuries or
homicide, not to the negligent act or imprudence of the
driver.
On October 14, 1971, petitioners filed an opposition to
said motion to dismiss alleging that the aforesaid action for
damages was instituted not to enforce the civil liability of
the respondents under Art. 100 of the Revised Penal Code
but for their civil liability on quasi-delicts pursuant to
Articles 2176-2194, as the same negligent act causing
damages may produce civil liability arising from a crime
under the Revised Penal Code or create an action for
quasi-delict or culpa extra-contractual under the Civil
Code, and the party seeking recovery is free to choose
which remedy to enforce.

In dismissing the complaint for damages in Civil Case No.

2850, the lower court sustained the arguments of
respondents, Mactan Transit Co., Inc. and Pedro Tumala,
and declared that whether or not "the action for damages
is based on criminal negligence or civil negligence known
as culpa aquiliana in the Civil Code or tort under American
law" there "should be a showing that the offended party
expressly waived the civil action or reserved his right to
institute it separately" and that "the allegations of the
complaint in culpa aquiliana must not be tainted by any
assertion of violation of law or traffic rules or regulations"
and because of the prayer in the complaint asking the
Court to declare the defendants jointly and severally liable
for moral, compensatory and exemplary damages, the
Court is of the opinion that the action was not based on
"culpa aquiliana or quasi-delict."
Petitioners' motion for reconsideration was denied by the
trial court on January 21, 1972, hence this appeal
oncertiorari.
There is no question that from a careful consideration of
the allegations contained in the complaint in Civil Case
No. 2850, the essential averments for a quasi-delictual
action under Articles 2176-2194 of the New Civil Code are
present, namely: a) act or omission of the private
respondents; b) presence of fault or negligence or the lack
of due care in the operation of the passenger bus No. 25
by respondent Pedro Tumala resulting in the collision of
the bus with the passenger car; c) physical injuries and
other damages sustained by petitioners as a result of the

collision; d) existence of direct causal connection between

the damage or prejudice and the fault or negligence of
private respondents; and e) the absence of pre-existing
contractual relations between the parties. The
circumstance that the complaint alleged that respondents
violated traffic rules in that the driver drove the vehicle "at
a fast clip in a reckless, grossly negligent and imprudent
manner in violation of traffic rules and without due regard
to the safety of the passengers aboard the PU car" does
not detract from the nature and character of the action, as
one based on culpa aquiliana. The violation of traffic rules
is merely descriptive of the failure of said driver to observe
for the protection of the interests of others, that degree of
care, precaution and vigilance which the circumstances
justly demand, which failure resulted in the injury on
petitioners. Certainly excessive speed in violation of traffic
rules is a clear indication of negligence. Since the same
negligent act resulted in the filing of the criminal action by
the Chief of Police with the Municipal Court (Criminal Case
No. 4960) and the civil action by petitioners, it is inevitable
that the averments on the drivers' negligence in both
complaints would substantially be the same. It should be
emphasized that the same negligent act causing damages
may produce a civil liability arising from a crime under Art.
100 of the Revised Penal Code or create an action for
quasi-delict or culpa extra-contractual under Arts. 21762194 of the New Civil Code. This distinction has been
amply explained in Barredo vs. Garcia, et al. (73 Phil. 607,
620-621). 1

It is true that under Sec. 2 in relation to Sec. 1 of Rule 111

of the Revised Rules of Court which became effective on
January 1, 1964, in the cases provided for by Articles 31,
33, 39 and 2177 of the Civil Code, an independent civil
action entirely separate and distinct from the civil action,
may be instituted by the injured party during the pendency
of the criminal case, provided said party has reserved his
right to institute it separately, but it should be noted,
however, that neither Section 1 nor Section 2 of Rule 111
fixes a time limit when such reservation shall be made.
In Tactaquin v. Palileo, 2 where the reservation was made
after the tort-feasor had already pleaded guilty and after
the private prosecutor had entered his appearance jointly
with the prosecuting attorney in the course of the criminal
proceedings, and the tort-feasor was convicted and
sentenced to pay damages to the offended party by final
judgment in said criminal case, We ruled that such
reservation is legally ineffective because the offended
party cannot recover damages twice for the same act or
omission of the defendant. We explained in Meneses vs.
Luat 3 that when the criminal action for physical injuries
against the defendant did not proceed to trial as he
pleaded guilty upon arraignment and the Court made no
pronouncement on the matter or damages suffered by the
injured party, the mere appearance of private counsel in
representation of the offended party in said criminal case
does not constitute such active intervention as could
impart an intention to press a claim for damages in the
same action, and, therefore, cannot bar a separate civil
action for damages subsequently instituted on the same
ground under Article 33 of the New Civil Code.

In the case at bar, there is no question that petitioners

never intervened in the criminal action instituted by the
Chief of Police against respondent Pedro Tumala, much
less has the said criminal action been terminated either by
conviction or acquittal of said accused.
It is, therefore, evident that by the institution of the present
civil action for damages, petitioners have in effect
abandoned their right to press recovery for damages in the
criminal case, and have opted instead to recover them in
the present civil case.
As a result of this action of petitioners the civil liability of
private respondents to the former has ceased to be
involved in the criminal action. Undoubtedly an offended
party loses his right to intervene in the prosecution of a
criminal case, not only when he has waived the civil action
or expressly reserved his right to institute, but also when
he has actually instituted the civil action. For by either of
such actions his interest in the criminal case has
disappeared.
As we have stated at the outset, the same negligent act
causing damages may produce a civil liability arising from
crime or create an action for quasi-delict or culpa extracontractual. The former is a violation of the criminal law,
while the latter is a distinct and independent negligence,
having always had its own foundation and individuality.
Some legal writers are of the view that in accordance with
Article 31, the civil action based upon quasi-delict may
proceed independently of the criminal proceeding for
criminal negligence and regardless of the result of the

latter. Hence, "the proviso in Section 2 of Rule 111 with

reference to ... Articles 32, 33 and 34 of the Civil Code is
contrary to the letter and spirit of the said articles, for
these articles were drafted ... and are intended to
constitute as exceptions to the general rule stated in what
is now Section 1 of Rule 111. The proviso which is
procedural, may also be regarded as an unauthorized
amendment of substantive law, Articles 32, 33 and 34 of
the Civil Code, which do not provide for the reservation
required in the proviso." 4 But in whatever way We view
the institution of the civil action for recovery of damages
under quasi-delict by petitioners, whether as one that
should be governed by the provisions of Section 2 of Rule
111 of the Rules which require reservation by the injured
party considering that by the institution of the civil action
even before the commencement of the trial of the criminal
case, petitioners have thereby foreclosed their right to
intervene therein, or one where reservation to file the civil
action need not be made, for the reason that the law itself
(Article 33 of the Civil Code) already makes the
reservation and the failure of the offended party to do so
does not bar him from bringing the action, under the
peculiar circumstances of the case, We find no legal
justification for respondent court's order of dismissal.
WHEREFORE, the decision and order appealed from are
hereby reversed and set aside, and the court a quo is
directed to proceed with the trial of the case. Costs against
private respondents.

Zaldivar, Castro Fernando, Teehankee, Makasiar and

Esguerra, JJ., concur.
Makalintal, Actg., C.J., concurs in the result.
Separate Opinions

BARREDO, J., concurring:

I would like to limit my concurrence.
I believe that the only substantive legal provision involved
in this case are Articles 2176 and 2177 of the Civil Code
which read as follows:
ART 2176. Whoever by act or omission causes
damage to another, there being fault or
negligence, is obliged to pay for the damage
done. Such fault or negligence, if there is no preexisting contractual relation between the parties,
is called a quasi-delict and is governed by the
provisions of this Chapter.
ART 2177. Responsibility for fault or negligence
under the preceding article is entirely separate
and distinct from the civil liability arising from
negligence under the Penal Code. But the
plaintiff cannot recover damages twice for the
same act or omission of the defendant.
These provisions definitely create a civil liability distinct
and different from the civil action arising from the offense

of negligence under the Revised Penal Code. Since Civil

Case No. 2850 is predicated on the above civil code
articles and not on the civil liability imposed by the
Revised Penal Code, I cannot see why a reservation had
to be made in the criminal case. As to the specific mention
of Article 2177 in Section 2 of the Rule 111, it is my
considered view that the latter provision is inoperative, it
being substantive in character and is not within the power
of the Supreme Court to promulgate, and even if it were
not substantive but adjective, it cannot stand because of
its inconsistency with Article 2177, an enactment of the
legislature superseding the Rules of 1940.
Besides, the actual filing of Civil Case No. 2850 should be
deemed as the reservation required, there being no
showing that prejudice could be caused by doing so.
Accordingly, I concur in the judgment reversing the order
of dismissal of the trial court in order that Civil Case No.
2850 may proceed, subject to the limitation mentioned in
the last sentence of Article 2177 of the Civil Code, which
means that of the two possible judgments, the injured
party is entitled exclusively to the bigger one.
Separate Opinions
BARREDO, J., concurring:
I would like to limit my concurrence.
I believe that the only substantive legal provision involved
in this case are Articles 2176 and 2177 of the Civil Code
which read as follows:

ART 2176. Whoever by act or omission causes

damage to another, there being fault or
negligence, is obliged to pay for the damage
done. Such fault or negligence, if there is no preexisting contractual relation between the parties,
is called a quasi-delict and is governed by the
provisions of this Chapter.
ART 2177. Responsibility for fault or negligence
under the preceding article is entirely separate
and distinct from the civil liability arising from
negligence under the Penal Code. But the
plaintiff cannot recover damages twice for the
same act or omission of the defendant.
These provisions definitely create a civil liability distinct
and different from the civil action arising from the offense
of negligence under the Revised Penal Code. Since Civil
Case No. 2850 is predicated on the above civil code
articles and not on the civil liability imposed by the
Revised Penal Code, I cannot see why a reservation had
to be made in the criminal case. As to the specific mention
of Article 2177 in Section 2 of the Rule 111, it is my
considered view that the latter provision is inoperative, it
being substantive in character and is not within the power
of the Supreme Court to promulgate, and even if it were
not substantive but adjective, it cannot stand because of
its inconsistency with Article 2177, an enactment of the
legislature superseding the Rules of 1940.

Besides, the actual filing of Civil Case No. 2850 should be

deemed as the reservation required, there being no
showing that prejudice could be caused by doing so.
Accordingly, I concur in the judgment reversing the order
of dismissal of the trial court in order that Civil Case No.
2850 may proceed, subject to the limitation mentioned in
the last sentence of Article 2177 of the Civil Code, which
means that of the two possible judgments, the injured
party is entitled exclusively to the bigger one.
Footnotes
1 "Firstly, the Revised Penal Code in article 365
punishes not only reckless but also simple
negligence. If we were to hold that articles 1902
to 1910 of the Civil Code refer only to fault or
negligence not punished by law, according to the
literal import of article 1093 of the Civil Code, the
legal institution of culpa aquiliana would have
very little scope and application in actual life.
Death or injury to persons and damage to
property through any degree of negligence
even the slightest would have to be
indemnified only through the principle of civil
liability arising from a crime. In such a state of
affairs, what sphere would remain for cuasidelito or culpa aquiliana? We are loath to impute
to the lawmaker any intention to bring about a
situation so absurd and anomalous. Nor are we,
in the interpretation of the laws, disposed to
uphold the letter that killeth rather than the spirit

that giveth life. We will not use the literal meaning

of the law to smother and render almost lifeless a
principle of such ancient origin and such fullgrown development as culpa aquiliana or cuasidelito, which is conserved and made enduring in
articles 1902 to 1910 of the Spanish Civil Code.
"Secondly, to find the accused guilty in a criminal
case, proof of guilt beyond reasonable doubt is
required, while in a civil case, preponderance of
evidence is sufficient to make the defendant pay
in damages. There are numerous cases of
criminal negligence which cannot be shown
beyond reasonable doubt, but can be proved by
a preponderance of evidence. In such cases, the
defendant can and should be made responsible
in a civil action under articles 1902 to 1910 of the
Civil Code. Otherwise, there would be many
instances of unvinticated civil wrongs. Ubi jus ibi
remedium.
"Thirdly, to hold that there is only one way to
make defendants liability effective, and that is, to
sue the driver and exhaust his (the latter's)
property first, would be tantamount to compelling
the plaintiff to follow a devious and cumbersome
method of obtaining relief. True, there is such a
remedy under our laws, but there is also a more
expeditious way, which is based on the primary
and direct responsibility of the defendant under
article 1903 of the Civil Code. Our view of the law

is more likely to facilitate remedy for civil wrongs,

because the procedure indicated by the
defendant is wasteful and productive of delay, it
being a matter of common knowledge that
professional drivers of taxis and similar public
conveyances usually do not have sufficient
means with which to pay damages. Why, then,
should the plaintiff be required in all cases to go
through this round about, unnecessary, and
probably useless procedure? In construing the
laws, courts have endeavored to shorted and
facilitate the pathways of right and justice.
"At this juncture, it should be said that the primary
and direct responsibility of employers and their
presumed negligence are principles calculated to
protect society. Workmen and employees should
be carefully chosen and supervised in order to
avoid injury to the public. It is the masters or
employers who principally reap the profits
resulting from the services of these servants and
employees. It is but right that they should
guarantee the latter's careful conduct for the
personnel and patrimonial safety of others. As
Theilhard has said, "they should reproach
themselves, at least, some for their weakness,
others for their poor selection and all for their
negligence." And according to Manresa, "It is
much more equitable and just that such
responsibility should fall upon the principal or
director who could have chosen a careful and

prudent employee, and not upon the injured

person who could not exercise such selection
and who used such employee because of his
confidence in the principal or director." (Vol. 12,
p. 622, 2nd Ed.) Many jurists also base this
primary responsibility of the employer on the
principle of representation of the principal by the
agent. Thus, Oyuelos says in the work already
cited (Vol. 7, p. 747) that before third persons the
employer and employee "vienen a ser como una
sola personalidad, por refundicion de la del
dependiente en la de quien la emplea y utiliza."
(become as one personality by the merging of the
person of the employee in that of him who
employs and utilizes him.) All these observations
acquire a peculiar force and significance when it
comes to motor accidents, and there is need of
stressing and accentuating the responsibility of
owners of motor vehicles.
"Fourthly, because of the broad sweep of the
provisions of both the Penal Code and the Civil
Code on this subject, which has given rise to
overlapping or concurrence of spheres already
discussed, and for lack of understanding of the
character and efficacy of the action for culpa
aquiliana there has grown up common practice to
seek damages only by virtue of the civil
responsibility arising from a crime, forgetting that
there is another remedy which is by invoking
articles 1902-1910 of the Civil Code. Although

this habitual method is allowed by our laws, it has

nevertheless rendered practically useless and
nugatory the more expeditions and effective
remedy based on culpa aquiliana or culpa extracontractual. In the present case, we are asked to
help perpetuate this usual course. But we believe
it is high time we pointed out to the harm done by
such practice and to restore the principle of
responsibility for fault or negligence under articles
1902 et seq. of the Civil Code to its full rigor. It is
high time we cause the stream of quasi-delict
or culpa aquiliana to flow on its own natural
channel, so that its waters may no longer be
diverted into that of crime under the Penal Code.
This will, it is believed, made for the better
safeguarding of private rights because it reestablishes an ancient and additional remedy,
and for the further reason that an independent
civil action, not depending on the issues,
limitations an results of a criminal prosecution,
and entirely directed by the party wronged or his
counsel, is more likely to secure adequate and
efficacious redress."
2 No. L-20865, September 29, 1967, 21 SCRA
346.
3 No. L-18116, November 28, 1964, 12 SCRA
454.

4 Footnote of Justice Capistrano in Corpus v.

Paje, L-26737, July 31, 1969, 28 SCRA, 1062,
1069.
CF. Tolentino, Commentaries and Jurisprudence
on the Civil Code, Vol. 1. page 142, 1968 Ed.

G.R. No. 74761 November 6, 1990

NATIVIDAD V. ANDAMO and EMMANUEL R.
ANDAMO, petitioners,
vs.
INTERMEDIATE APPELLATE COURT (First Civil Cases
Division) and MISSIONARIES OF OUR LADY OF LA
SALETTE, INC., respondents.
Lope E. Adriano for petitioners.
Padilla Law Office for private respondent.

FERNAN, C.J.:
The pivotal issue in this petition for certiorari, prohibition
and mandamus is whether a corporation, which has built
through its agents, waterpaths, water conductors and
contrivances within its land, thereby causing inundation
and damage to an adjacent land, can be held civilly liable
for damages under Articles 2176 and 2177 of the Civil
Code on quasi-delicts such that the resulting civil case can
proceed independently of the criminal case.

The antecedent facts are as follows:

Petitioner spouses Emmanuel and Natividad Andamo are
the owners of a parcel of land situated in Biga (Biluso)
Silang, Cavite which is adjacent to that of private
respondent, Missionaries of Our Lady of La Salette, Inc., a
religious corporation.
Within the land of respondent corporation, waterpaths and
contrivances, including an artificial lake, were constructed,
which allegedly inundated and eroded petitioners' land,
caused a young man to drown, damaged petitioners' crops
and plants, washed away costly fences, endangered the
lives of petitioners and their laborers during rainy and
stormy seasons, and exposed plants and other
improvements to destruction.
In July 1982, petitioners instituted a criminal action,
docketed as Criminal Case No. TG-907-82, before the
Regional Trial Court of Cavite, Branch 4 (Tagaytay City),
against Efren Musngi, Orlando Sapuay and Rutillo
Mallillin, officers and directors of herein respondent
corporation, for destruction by means of inundation under
Article 324 of the Revised Penal Code.
Subsequently, on February 22, 1983, petitioners filed
another action against respondent corporation, this time a
civil case, docketed as Civil Case No. TG-748, for
damages with prayer for the issuance of a writ of
preliminary injunction before the same court. 1

On March 11, 1983, respondent corporation filed its

answer to the complaint and opposition to the issuance of
a writ of preliminary injunction. Hearings were conducted
including ocular inspections on the land. However, on April
26, 1984, the trial court, acting on respondent
corporation's motion to dismiss or suspend the civil action,
issued an order suspending further hearings in Civil Case
No, TG-748 until after judgment in the related Criminal
Case No. TG-907-82.
Resolving respondent corporation's motion to dismiss filed
on June 22, 1984, the trial court issued on August 27,
1984 the disputed order dismissing Civil Case No. TG-748
for lack of jurisdiction, as the criminal case which was
instituted ahead of the civil case was still unresolved. Said
order was anchored on the provision of Section 3 (a), Rule
III of the Rules of Court which provides that "criminal and
civil actions arising from the same offense may be
instituted separately, but after the criminal action has been
commenced the civil action cannot be instituted until final
judgment has been rendered in the criminal action." 2
Petitioners appealed from that order to the Intermediate
Appellate Court. 3
On February 17, 1986, respondent Appellate Court, First
Civil Cases Division, promulgated a decision 4 affirming
the questioned order of the trial court. 5 A motion for
reconsideration filed by petitioners was denied by the
Appellate Court in its resolution dated May 19, 1986. 6

Directly at issue is the propriety of the dismissal of Civil

Case No. TG-748 in accordance with Section 3 (a) of Rule
111 of the Rules of Court. Petitioners contend that the trial
court and the Appellate Court erred in dismissing Civil
Case No. TG-748 since it is predicated on a quasi-delict.
Petitioners have raised a valid point.
It is axiomatic that the nature of an action filed in court is
determined by the facts alleged in the complaint as
constituting the cause of action. 7 The purpose of an action
or suit and the law to govern it, including the period of
prescription, is to be determined not by the claim of the
party filing the action, made in his argument or brief, but
rather by the complaint itself, its allegations and prayer for
relief. 8 The nature of an action is not necessarily
determined or controlled by its title or heading but the
body of the pleading or complaint itself. To avoid possible
denial of substantial justice due to legal technicalities,
pleadings as well as remedial laws should be liberally
construed so that the litigants may have ample opportunity
to prove their respective claims. 9
Quoted hereunder are the pertinent portions of petitioners'
complaint in Civil Case No. TG-748:
4) That within defendant's land, likewise located
at Biga (Biluso), Silang, Cavite, adjacent on the
right side of the aforesaid land of plaintiffs,
defendant constructed waterpaths starting from
the middle-right portion thereof leading to a big
hole or opening, also constructed by defendant,
thru the lower portion of its concrete hollow-

blocks fence situated on the right side of its

cemented gate fronting the provincial highway,
and connected by defendant to a man height
inter-connected cement culverts which were also
constructed and lain by defendant cross-wise
beneath the tip of the said cemented gate, the
left-end of the said inter-connected culverts again
connected by defendant to a big hole or opening
thru the lower portion of the same concrete
hollowblocks fence on the left side of the said
cemented gate, which hole or opening is likewise
connected by defendant to the cemented mouth
of a big canal, also constructed by defendant,
which runs northward towards a big hole or
opening which was also built by defendant thru
the lower portion of its concrete hollow-blocks
fence which separates the land of plaintiffs from
that of defendant (and which serves as the exitpoint of the floodwater coming from the land of
defendant, and at the same time, the entrancepoint of the same floodwater to the land of
plaintiffs, year after year, during rainy or stormy
seasons.
5) That moreover, on the middle-left portion of its
land just beside the land of plaintiffs, defendant
also constructed an artificial lake, the base of
which is soil, which utilizes the water being
channeled thereto from its water system thru
inter-connected galvanized iron pipes (No. 2) and
complimented by rain water during rainy or

stormy seasons, so much so that the water below

it seeps into, and the excess water above it
inundates, portions of the adjoining land of
plaintiffs.
6) That as a result of the inundation brought
about by defendant's aforementioned water
conductors, contrivances and manipulators, a
young man was drowned to death, while herein
plaintiffs suffered and will continue to suffer, as
follows:
a) Portions of the land of plaintiffs were
eroded and converted to deep, wide and
long canals, such that the same can no
longer be planted to any crop or plant.
b) Costly fences constructed by plaintiffs
were, on several occasions, washed
away.
c) During rainy and stormy seasons the
lives of plaintiffs and their laborers are
always in danger.
d) Plants and other improvements on
other portions of the land of plaintiffs are
exposed to destruction. ... 10
A careful examination of the aforequoted complaint shows
that the civil action is one under Articles 2176 and 2177 of
the Civil Code on quasi-delicts. All the elements of a
quasi-delict are present, to wit: (a) damages suffered by

the plaintiff, (b) fault or negligence of the defendant, or

some other person for whose acts he must respond; and
(c) the connection of cause and effect between the fault or
negligence of the defendant and the damages incurred by
the plaintiff. 11
Clearly, from petitioner's complaint, the waterpaths and
contrivances built by respondent corporation are alleged to
have inundated the land of petitioners. There is therefore,
an assertion of a causal connection between the act of
building these waterpaths and the damage sustained by
petitioners. Such action if proven constitutes fault or
negligence which may be the basis for the recovery of
damages.
In the case of Samson vs. Dionisio, 12 the Court applied
Article 1902, now Article 2176 of the Civil Code and held
that "any person who without due authority constructs a
bank or dike, stopping the flow or communication between
a creek or a lake and a river, thereby causing loss and
damages to a third party who, like the rest of the residents,
is entitled to the use and enjoyment of the stream or lake,
shall be liable to the payment of an indemnity for loss and
damages to the injured party.
While the property involved in the cited case belonged to
the public domain and the property subject of the instant
case is privately owned, the fact remains that petitioners'
complaint sufficiently alleges that petitioners have
sustained and will continue to sustain damage due to the
waterpaths and contrivances built by respondent
corporation. Indeed, the recitals of the complaint, the

alleged presence of damage to the petitioners, the act or

omission of respondent corporation supposedly
constituting fault or negligence, and the causal connection
between the act and the damage, with no pre-existing
contractual obligation between the parties make a clear
case of a quasi delict or culpa aquiliana.
It must be stressed that the use of one's property is not
without limitations. Article 431 of the Civil Code provides
that "the owner of a thing cannot make use thereof in such
a manner as to injure the rights of a third person." SIC
UTERE TUO UT ALIENUM NON LAEDAS. Moreover,
adjoining landowners have mutual and reciprocal duties
which require that each must use his own land in a
reasonable manner so as not to infringe upon the rights
and interests of others. Although we recognize the right of
an owner to build structures on his land, such structures
must be so constructed and maintained using all
reasonable care so that they cannot be dangerous to
adjoining landowners and can withstand the usual and
expected forces of nature. If the structures cause injury or
damage to an adjoining landowner or a third person, the
latter can claim indemnification for the injury or damage
suffered.
Article 2176 of the Civil Code imposes a civil liability on a
person for damage caused by his act or omission
constituting fault or negligence, thus:
Article 2176. Whoever by act or omission causes
damage to another, there being fault or
negligence, is obliged to pay for the damage

done. Such fault or negligence, if there is no preexisting contractual relation between the parties,
is called a quasi-delict and is governed by the
provisions of this chapter.
Article 2176, whenever it refers to "fault or negligence",
covers not only acts "not punishable by law" but also acts
criminal in character, whether intentional and voluntary or
negligent. Consequently, a separate civil action lies
against the offender in a criminal act, whether or not he is
criminally prosecuted and found guilty or acquitted,
provided that the offended party is not allowed, (if the
tortfeasor is actually charged also criminally), to recover
damages on both scores, and would be entitled in such
eventuality only to the bigger award of the two, assuming
the awards made in the two cases vary. 13
The distinctness of quasi-delicta is shown in Article 2177
of the Civil Code, which states:
Article 2177. Responsibility for fault or negligence
under the preceding article is entirely separate
and distinct from the civil liability arising from
negligence under the Penal Code. But the
plaintiff cannot recover damages twice for the
same act or omission of the defendant.
According to the Report of the Code Commission "the
foregoing provision though at first sight startling, is not so
novel or extraordinary when we consider the exact nature
of criminal and civil negligence. The former is a violation of
the criminal law, while the latter is a distinct and

independent negligence, which is a "culpa aquiliana" or

quasi-delict, of ancient origin, having always had its own
foundation and individuality, separate from criminal
negligence. Such distinction between criminal negligence
and "culpa extra-contractual" or "cuasi-delito" has been
sustained by decisions of the Supreme Court of Spain ... 14
In the case of Castillo vs. Court of Appeals, 15 this Court
held that a quasi-delict or culpa aquiliana is a separate
legal institution under the Civil Code with a substantivity all
its own, and individuality that is entirely apart and
independent from a delict or crime a distinction exists
between the civil liability arising from a crime and the
responsibility for quasi-delicts or culpa extra-contractual.
The same negligence causing damages may produce civil
liability arising from a crime under the Penal Code, or
create an action for quasi-delicts or culpa extra-contractual
under the Civil Code. Therefore, the acquittal or conviction
in the criminal case is entirely irrelevant in the civil case,
unless, of course, in the event of an acquittal where the
court has declared that the fact from which the civil action
arose did not exist, in which case the extinction of the
criminal liability would carry with it the extinction of the civil
liability.
In Azucena vs. Potenciano, 16 the Court declared that in
quasi-delicts, "(t)he civil action is entirely independent of
the criminal case according to Articles 33 and 2177 of the
Civil Code. There can be no logical conclusion than this,
for to subordinate the civil action contemplated in the said
articles to the result of the criminal prosecution whether

it be conviction or acquittal would render meaningless

the independent character of the civil action and the clear
injunction in Article 31, that his action may proceed
independently of the criminal proceedings and regardless
of the result of the latter."
WHEREFORE, the assailed decision dated February 17,
1986 of the then Intermediate Appellate Court affirming
the order of dismissal of the Regional Trial Court of Cavite,
Branch 18 (Tagaytay City) dated August 17, 1984 is
hereby REVERSED and SET ASIDE. The trial court is
ordered to reinstate Civil Case No. TG-748 entitled
"Natividad V. Andamo and Emmanuel R. Andamo vs.
Missionaries of Our Lady of La Salette Inc." and to
proceed with the hearing of the case with dispatch. This
decision is immediately executory. Costs against
respondent corporation.
SO ORDERED.

G.R. No. L-4977

March 22, 1910

DAVID TAYLOR, plaintiff-appellee,

vs.
THE MANILA ELECTRIC RAILROAD AND LIGHT
COMPANY, defendant-appellant.
W. H. Lawrence, for appellant.
W. L. Wright, for appellee.
CARSON, J.:
An action to recover damages for the loss of an eye and
other injuries, instituted by David Taylor, a minor, by his
father, his nearest relative.
The defendant is a foreign corporation engaged in the
operation of a street railway and an electric light system in
the city of Manila. Its power plant is situated at the eastern
end of a small island in the Pasig River within the city of
Manila, known as the Isla del Provisor. The power plant
may be reached by boat or by crossing a footbridge,
impassable for vehicles, at the westerly end of the island.
The plaintiff, David Taylor, was at the time when he
received the injuries complained of, 15 years of age, the
son of a mechanical engineer, more mature than the
average boy of his age, and having considerable aptitude
and training in mechanics.
On the 30th of September, 1905, plaintiff, with a boy
named Manuel Claparols, about 12 years of age, crossed
the footbridge to the Isla del Provisor, for the purpose of

visiting one Murphy, an employee of the defendant, who

and promised to make them a cylinder for a miniature
engine. Finding on inquiry that Mr. Murphy was not in his
quarters, the boys, impelled apparently by youthful
curiosity and perhaps by the unusual interest which both
seem to have taken in machinery, spent some time in
wandering about the company's premises. The visit was
made on a Sunday afternoon, and it does not appear that
they saw or spoke to anyone after leaving the power
house where they had asked for Mr. Murphy.
After watching the operation of the travelling crane used in
handling the defendant's coal, they walked across the
open space in the neighborhood of the place where the
company dumped in the cinders and ashes from its
furnaces. Here they found some twenty or thirty brass
fulminating caps scattered on the ground. These caps are
approximately of the size and appearance of small pistol
cartridges and each has attached to it two long thin wires
by means of which it may be discharged by the use of
electricity. They are intended for use in the explosion of
blasting charges of dynamite, and have in themselves a
considerable explosive power. After some discussion as to
the ownership of the caps, and their right to take them, the
boys picked up all they could find, hung them on stick, of
which each took end, and carried them home. After
crossing the footbridge, they met a little girl named Jessie
Adrian, less than 9 years old, and all three went to the
home of the boy Manuel. The boys then made a series of
experiments with the caps. They trust the ends of the
wires into an electric light socket and obtained no result.

They next tried to break the cap with a stone and failed.
Manuel looked for a hammer, but could not find one. Then
they opened one of the caps with a knife, and finding that
it was filled with a yellowish substance they got matches,
and David held the cap while Manuel applied a lighted
match to the contents. An explosion followed, causing
more or less serious injuries to all three. Jessie, who when
the boys proposed putting a match to the contents of the
cap, became frightened and started to run away, received
a slight cut in the neck. Manuel had his hand burned and
wounded, and David was struck in the face by several
particles of the metal capsule, one of which injured his
right eye to such an extent as to the necessitate its
removal by the surgeons who were called in to care for his
wounds.
The evidence does definitely and conclusively disclose
how the caps came to be on the defendant's premises, nor
how long they had been there when the boys found them.
It appears, however, that some months before the
accident, during the construction of the defendant's plant,
detonating caps of the same size and kind as those found
by the boys were used in sinking a well at the power plant
near the place where the caps were found; and it also
appears that at or about the time when these caps were
found, similarly caps were in use in the construction of an
extension of defendant's street car line to Fort William
McKinley. The caps when found appeared to the boys who
picked them up to have been lying for a considerable time,
and from the place where they were found would seem to

have been discarded as detective or worthless and fit only

to be thrown upon the rubbish heap.
No measures seems to have been adopted by the
defendant company to prohibit or prevent visitors from
entering and walking about its premises unattended, when
they felt disposed so to do. As admitted in defendant
counsel's brief, "it is undoubtedly true that children in their
play sometimes crossed the foot bridge to the islands;"
and, we may add, roamed about at will on the uninclosed
premises of the defendant, in the neighborhood of the
place where the caps were found. There is evidence that
any effort ever was made to forbid these children from
visiting the defendant company's premises, although it
must be assumed that the company or its employees were
aware of the fact that they not infrequently did so.
Two years before the accident, plaintiff spent four months
at sea, as a cabin boy on one of the interisland transports.
Later he took up work in his father's office, learning
mechanical drawing and mechanical engineering. About a
month after his accident he obtained employment as a
mechanical draftsman and continued in that employment
for six months at a salary of P2.50 a day; and it appears
that he was a boy of more than average intelligence, taller
and more mature both mentally and physically than most
boys of fifteen.
The facts set out in the foregoing statement are to our
mind fully and conclusively established by the evidence of
record, and are substantially admitted by counsel. The
only questions of fact which are seriously disputed are

plaintiff's allegations that the caps which were found by

plaintiff on defendant company's premises were the
property of the defendant, or that they had come from its
possession and control, and that the company or some of
its employees left them exposed on its premises at the
point where they were found.
The evidence in support of these allegations is meager,
and the defendant company, apparently relying on the rule
of law which places the burden of proof of such allegations
upon the plaintiff, offered no evidence in rebuttal, and
insists that plaintiff failed in his proof. We think, however,
that plaintiff's evidence is sufficient to sustain a finding in
accord with his allegations in this regard.
It was proven that caps, similar to those found by plaintiff,
were used, more or less extensively, on the McKinley
extension of the defendant company's track; that some of
these caps were used in blasting a well on the company's
premises a few months before the accident; that not far
from the place where the caps were found the company
has a storehouse for the materials, supplies and so forth,
used by it in its operations as a street railway and a
purveyor of electric light; and that the place, in the
neighborhood of which the caps were found, was being
used by the company as a sort of dumping ground for
ashes and cinders. Fulminating caps or detonators for the
discharge by electricity of blasting charges by dynamite
are not articles in common use by the average citizen, and
under all the circumstances, and in the absence of all
evidence to the contrary, we think that the discovery of

twenty or thirty of these caps at the place where they were

found by the plaintiff on defendant's premises fairly
justifies the inference that the defendant company was
either the owner of the caps in question or had the caps
under its possession and control. We think also that the
evidence tends to disclose that these caps or detonators
were willfully and knowingly thrown by the company or its
employees at the spot where they were found, with the
expectation that they would be buried out of the sight by
the ashes which it was engaged in dumping in that
neighborhood, they being old and perhaps defective; and,
however this may be, we are satisfied that the evidence is
sufficient to sustain a finding that the company or some of
its employees either willfully or through an oversight left
them exposed at a point on its premises which the general
public, including children at play, where not prohibited
from visiting, and over which the company knew or ought
to have known that young boys were likely to roam about
in pastime or in play.
Counsel for appellant endeavors to weaken or destroy the
probative value of the facts on which these conclusions
are based by intimidating or rather assuming that the
blasting work on the company's well and on its McKinley
extension was done by contractors. It was conclusively
proven, however, that while the workman employed in
blasting the well was regularly employed by J. G. White
and Co., a firm of contractors, he did the work on the well
directly and immediately under the supervision and control
of one of defendant company's foremen, and there is no
proof whatever in the record that the blasting on the

McKinley extension was done by independent contractors.

Only one witness testified upon this point, and while he
stated that he understood that a part of this work was
done by contract, he could not say so of his own
knowledge, and knew nothing of the terms and conditions
of the alleged contract, or of the relations of the alleged
contractor to the defendant company. The fact having
been proven that detonating caps were more or less
extensively employed on work done by the defendant
company's directions and on its behalf, we think that the
company should have introduced the necessary evidence
to support its contention if it wished to avoid the not
unreasonable inference that it was the owner of the
material used in these operations and that it was
responsible for tortious or negligent acts of the agents
employed therein, on the ground that this work had been
intrusted to independent contractors as to whose acts the
maxim respondent superior should not be applied. If the
company did not in fact own or make use of caps such as
those found on its premises, as intimated by counsel, it
was a very simple matter for it to prove that fact, and in the
absence of such proof we think that the other evidence in
the record sufficiently establishes the contrary, and
justifies the court in drawing the reasonable inference that
the caps found on its premises were its property, and were
left where they were found by the company or some of its
employees.
Plaintiff appears to have rested his case, as did the trial
judge his decision in plaintiff's favor, upon the provisions of

article 1089 of the Civil Code read together with articles

1902, 1903, and 1908 of that code.
ART. 1089 Obligations are created by law, by
contracts, by quasi-contracts, and illicit acts and
omissions or by those in which any kind of fault or
negligence occurs.
ART. 1902 A person who by an act or omission
causes damage to another when there is fault or
negligence shall be obliged to repair the damage so
done.
ART. 1903 The obligation imposed by the preceding
article is demandable, not only for personal acts and
omissions, but also for those of the persons for whom
they should be responsible.
The father, and on his death or incapacity the mother,
is liable for the damages caused by the minors who
live with them.
xxx

xxx

xxx

Owners or directors of an establishment or enterprise

are equally liable for damages caused by their
employees in the service of the branches in which the
latter may be employed or on account of their duties.
xxx

xxx

xxx

The liability referred to in this article shall cease when

the persons mentioned therein prove that they

employed all the diligence of a good father of a family

to avoid the damage.
ART. 1908 The owners shall also be liable for the
damage caused
1 By the explosion of machines which may not have
been cared for with due diligence, and for kindling of
explosive substances which may not have been
placed in a safe and proper place.
Counsel for the defendant and appellant rests his appeal
strictly upon his contention that the facts proven at the trial
do not established the liability of the defendant company
under the provisions of these articles, and since we agree
with this view of the case, it is not necessary for us to
consider the various questions as to form and the right of
action (analogous to those raised in the case of Rakes vs.
Atlantic, Gulf and Pacific Co., 7 Phil. Rep., 359), which
would, perhaps, be involved in a decision affirming the
judgment of the court below.
We agree with counsel for appellant that under the Civil
Code, as under the generally accepted doctrine in the
United States, the plaintiff in an action such as that under
consideration, in order to establish his right to a recovery,
must establish by competent evidence:
(1) Damages to the plaintiff.
(2) Negligence by act or omission of which defendant
personally, or some person for whose acts it must
respond, was guilty.

(3) The connection of cause and effect between the

negligence and the damage.
These proposition are, of course, elementary, and do not
admit of discussion, the real difficulty arising in the
application of these principles to the particular facts
developed in the case under consideration.
It is clear that the accident could not have happened and
not the fulminating caps been left exposed at the point
where they were found, or if their owner had exercised
due care in keeping them in an appropriate place; but it is
equally clear that plaintiff would not have been injured had
he not, for his own pleasure and convenience, entered
upon the defendant's premises, and strolled around
thereon without the express permission of the defendant,
and had he not picked up and carried away the property of
the defendant which he found on its premises, and had he
not thereafter deliberately cut open one of the caps and
applied a match to its contents.
But counsel for plaintiff contends that because of plaintiff's
youth and inexperience, his entry upon defendant
company's premises, and the intervention of his action
between the negligent act of defendant in leaving the caps
exposed on its premises and the accident which resulted
in his injury should not be held to have contributed in any
wise to the accident, which should be deemed to be the
direct result of defendant's negligence in leaving the caps
exposed at the place where they were found by the
plaintiff, and this latter the proximate cause of the accident
which occasioned the injuries sustained by him.

In support of his contention, counsel for plaintiff relies on

the doctrine laid down in many of the courts of last resort
in the United States in the cases known as the "Torpedo"
and "Turntable" cases, and the cases based thereon.
In a typical cases, the question involved has been whether
a railroad company is liable for an injury received by an
infant of tender years, who from mere idle curiosity, or for
the purposes of amusement, enters upon the railroad
company's premises, at a place where the railroad
company knew, or had good reason to suppose, children
would be likely to come, and there found explosive signal
torpedoes left unexposed by the railroad company's
employees, one of which when carried away by the visitor,
exploded and injured him; or where such infant found
upon the premises a dangerous machine, such as a
turntable, left in such condition as to make it probable that
children in playing with it would be exposed to accident or
injury therefrom and where the infant did in fact suffer
injury in playing with such machine.
In these, and in great variety of similar cases, the great
weight of authority holds the owner of the premises liable.
As laid down in Railroad Co. vs. Stout (17 Wall. (84 U. S.),
657), wherein the principal question was whether a
railroad company was liable for in injury received by an
infant while upon its premises, from idle curiosity, or for
purposes of amusement, if such injury was, under
circumstances, attributable to the negligence of the
company), the principles on which these cases turn are
that "while a railroad company is not bound to the same

degree of care in regard to mere strangers who are

unlawfully upon its premises that it owes to passengers
conveyed by it, it is not exempt from responsibility to such
strangers for injuries arising from its negligence or from its
tortious acts;" and that "the conduct of an infant of tender
years is not to be judged by the same rule which governs
that of adult. While it is the general rule in regard to an
adult that to entitle him to recover damages for an injury
resulting from the fault or negligence of another he must
himself have been free from fault, such is not the rule in
regard to an infant of tender years. The care and caution
required of a child is according to his maturity and capacity
only, and this is to be determined in each case by the
circumstances of the case."
The doctrine of the case of Railroad Company vs.
Stout was vigorously controverted and sharply criticized in
several state courts, and the supreme court of Michigan in
the case of Ryan vs. Towar (128 Mich., 463) formally
repudiated and disapproved the doctrine of the Turntable
cases, especially that laid down in Railroad Company vs.
Stout, in a very able decision wherein it held, in the
language of the syllabus: (1) That the owner of the land is
not liable to trespassers thereon for injuries sustained by
them, not due to his wanton or willful acts; (2) that no
exception to this rule exists in favor of children who are
injured by dangerous machinery naturally calculated to
attract them to the premises; (3) that an invitation or
license to cross the premises of another can not be
predicated on the mere fact that no steps have been taken
to interfere with such practice; (4) that there is no

difference between children and adults as to the

circumstances that will warrant the inference of an
invitation or a license to enter upon another's premises.
Similar criticisms of the opinion in the case of Railroad
Company vs. Stout were indulged in by the courts in
Connecticut and Massachusetts. (Nolan vs. Railroad Co.,
53 Conn., 461; 154 Mass., 349). And the doctrine has
been questioned in Wisconsin, Pennsylvania, New
Hampshire, and perhaps in other States.
On the other hand, many if not most of the courts of last
resort in the United States, citing and approving the
doctrine laid down in England in the leading case of Lynch
vs. Nurding (1 Q. B., 29, 35, 36), lay down the rule in
these cases in accord with that announced in the Railroad
Company vs. Stout (supra), and the Supreme Court of the
United States, in a unanimous opinion delivered by Justice
Harlan in the case of Union Pacific Railway Co. vs.
McDonal and reconsidered the doctrine laid down in
Railroad Co. vs. Stout, and after an exhaustive and critical
analysis and review of many of the adjudged cases, both
English and American, formally declared that it adhered
"to the principles announced in the case of Railroad Co.
vs. Stout."
In the case of Union Pacific Railway Co. vs.
MacDonald (supra) the facts were as follows: The plaintiff,
a boy 12 years of age, out of curiosity and for his own
pleasure, entered upon and visited the defendant's
premises, without defendant's express permission or
invitation, and while there, was by accident injured by

falling into a burning slack pile of whose existence he had

no knowledge, but which had been left by defendant on its
premises without any fence around it or anything to give
warning of its dangerous condition, although defendant
knew or had reason the interest or curiosity of passers-by.
On these facts the court held that the plaintiff could not be
regarded as a mere trespasser, for whose safety and
protection while on the premises in question, against the
unseen danger referred to, the defendant was under no
obligation to make provision.
We quote at length from the discussion by the court of the
application of the principles involved to the facts in that
case, because what is said there is strikingly applicable in
the case at bar, and would seem to dispose of defendant's
contention that, the plaintiff in this case being a
trespasser, the defendant company owed him no duty,
and in no case could be held liable for injuries which would
not have resulted but for the entry of plaintiff on
defendant's premises.
We adhere to the principles announced in Railroad
Co. vs. Stout (supra). Applied to the case now before
us, they require us to hold that the defendant was
guilty of negligence in leaving unguarded the slack
pile, made by it in the vicinity of its depot building. It
could have forbidden all persons from coming to its
coal mine for purposes merely of curiosity and
pleasure. But it did not do so. On the contrary, it
permitted all, without regard to age, to visit its mine,
and witness its operation. It knew that the usual

approach to the mine was by a narrow path skirting its

slack pit, close to its depot building, at which the
people of the village, old and young, would often
assemble. It knew that children were in the habit of
frequenting that locality and playing around the shaft
house in the immediate vicinity of the slack pit. The
slightest regard for the safety of these children would
have suggested that they were in danger from being
so near a pit, beneath the surface of which was
concealed (except when snow, wind, or rain
prevailed) a mass of burning coals into which a child
might accidentally fall and be burned to death. Under
all the circumstances, the railroad company ought not
to be heard to say that the plaintiff, a mere lad, moved
by curiosity to see the mine, in the vicinity of the slack
pit, was a trespasser, to whom it owed no duty, or for
whose protection it was under no obligation to make
provisions.
In Townsend vs. Wathen (9 East, 277, 281) it was
held that if a man dangerous traps, baited with flesh,
in his own ground, so near to a highway, or to the
premises of another, that dogs passing along the
highway, or kept in his neighbors premises, would
probably be attracted by their instinct into the traps,
and in consequence of such act his neighbor's dogs
be so attracted and thereby injured, an action on the
case would lie. "What difference," said Lord
Ellenborough, C.J., "is there in reason between
drawing the animal into the trap by means of his
instinct which he can not resist, and putting him there

by manual force?" What difference, in reason we may

observe in this case, is there between an express
license to the children of this village to visit the
defendant's coal mine, in the vicinity of its slack pile,
and an implied license, resulting from the habit of the
defendant to permit them, without objection or
warning, to do so at will, for purposes of curiosity or
pleasure? Referring it the case of Townsend vs.
Wathen, Judge Thompson, in his work on the Law of
Negligence, volume 1, page 305, note, well says: "It
would be a barbarous rule of law that would make the
owner of land liable for setting a trap thereon, baited
with stinking meat, so that his neighbor's dog
attracted by his natural instinct, might run into it and
be killed, and which would exempt him from liability
for the consequence of leaving exposed and
unguarded on his land a dangerous machine, so that
his neighbor's child attracted to it and tempted to
intermeddle with it by instincts equally strong, might
thereby be killed or maimed for life."
Chief Justice Cooley, voicing the opinion of the supreme
court of Michigan, in the case of Powers vs. Harlow (53
Mich., 507), said that (p. 515):
Children, wherever they go, must be expected to act
upon childlike instincts and impulses; and others who
are chargeable with a duty of care and caution toward
them must calculate upon this, and take precautions
accordingly. If they leave exposed to the observation
of children anything which would be tempting to them,

and which they in their immature judgment might

naturally suppose they were at liberty to handle or
play with, they should expect that liberty to be taken.
And the same eminent jurist in his treatise or torts, alluding
to the doctrine of implied invitation to visit the premises of
another, says:
In the case of young children, and other persons not
fully sui juris, an implied license might sometimes
arise when it would not on behalf of others. Thus
leaving a tempting thing for children to play with
exposed, where they would be likely to gather for that
purpose, may be equivalent to an invitation to them to
make use of it; and, perhaps, if one were to throw
away upon his premises, near the common way,
things tempting to children, the same implication
should arise. (Chap. 10, p. 303.)
The reasoning which led the Supreme Court of the United
States to its conclusion in the cases of Railroad Co. vs.
Stout (supra) and Union Pacific Railroad Co. vs.
McDonald (supra) is not less cogent and convincing in this
jurisdiction than in that wherein those cases originated.
Children here are actuated by similar childish instincts and
impulses. Drawn by curiosity and impelled by the restless
spirit of youth, boys here as well as there will usually be
found whenever the public is permitted to congregate. The
movement of machinery, and indeed anything which
arouses the attention of the young and inquiring mind, will
draw them to the neighborhood as inevitably as does the
magnet draw the iron which comes within the range of its

magnetic influence. The owners of premises, therefore,

whereon things attractive to children are exposed, or upon
which the public are expressly or impliedly permitted to
enter or upon which the owner knows or ought to know
children are likely to roam about for pastime and in play, "
must calculate upon this, and take precautions
accordingly." In such cases the owner of the premises can
not be heard to say that because the child has entered
upon his premises without his express permission he is a
trespasser to whom the owner owes no duty or obligation
whatever. The owner's failure to take reasonable
precautions to prevent the child from entering his premises
at a place where he knows or ought to know that children
are accustomed to roam about of to which their childish
instincts and impulses are likely to attract them is at least
equivalent to an implied license to enter, and where the
child does enter under such conditions the owner's failure
to take reasonable precautions to guard the child against
injury from unknown or unseen dangers, placed upon such
premises by the owner, is clearly a breach of duty,
responsible, if the child is actually injured, without other
fault on its part than that it had entered on the premises of
a stranger without his express invitation or permission. To
hold otherwise would be expose all the children in the
community to unknown perils and unnecessary danger at
the whim of the owners or occupants of land upon which
they might naturally and reasonably be expected to enter.
This conclusion is founded on reason, justice, and
necessity, and neither is contention that a man has a right
to do what will with his own property or that children

should be kept under the care of their parents or

guardians, so as to prevent their entering on the premises
of others is of sufficient weight to put in doubt. In this
jurisdiction as well as in the United States all private
property is acquired and held under the tacit condition that
it shall not be so used as to injure the equal rights and
interests of the community (see U. S. vs. Toribio,1 No.
5060, decided January 26, 1910), and except as to infants
of very tender years it would be absurd and unreasonable
in a community organized as is that in which we lived to
hold that parents or guardian are guilty of negligence or
imprudence in every case wherein they permit growing
boys and girls to leave the parental roof unattended, even
if in the event of accident to the child the negligence of the
parent could in any event be imputed to the child so as to
deprive it a right to recover in such cases a point which
we neither discuss nor decide.
But while we hold that the entry of the plaintiff upon
defendant's property without defendant's express invitation
or permission would not have relieved defendant from
responsibility for injuries incurred there by plaintiff, without
other fault on his part, if such injury were attributable to the
negligence of the defendant, we are of opinion that under
all the circumstances of this case the negligence of the
defendant in leaving the caps exposed on its premises
was not the proximate cause of the injury received by the
plaintiff, which therefore was not, properly speaking,
"attributable to the negligence of the defendant," and, on
the other hand, we are satisfied that plaintiffs action in
cutting open the detonating cap and putting match to its

contents was the proximate cause of the explosion and of

the resultant injuries inflicted upon the plaintiff, and that
the defendant, therefore is not civilly responsible for the
injuries thus incurred.
Plaintiff contends, upon the authority of the Turntable and
Torpedo cases, that because of plaintiff's youth the
intervention of his action between the negligent act of the
defendant in leaving the caps exposed on its premises
and the explosion which resulted in his injury should not
be held to have contributed in any wise to the accident;
and it is because we can not agree with this proposition,
although we accept the doctrine of the Turntable and
Torpedo cases, that we have thought proper to discuss
and to consider that doctrine at length in this decision. As
was said in case of Railroad Co. vs. Stout (supra), "While
it is the general rule in regard to an adult that to entitle him
to recover damages for an injury resulting from the fault or
negligence of another he must himself have been free
from fault, such is not the rule in regard to an infant of
tender years. The care and caution required of a child is
according to his maturity and capacity only, and this is to
be determined in each case by the circumstances of the
case." As we think we have shown, under the reasoning
on which rests the doctrine of the Turntable and Torpedo
cases, no fault which would relieve defendant of
responsibility for injuries resulting from its negligence can
be attributed to the plaintiff, a well-grown boy of 15 years
of age, because of his entry upon defendant's uninclosed
premises without express permission or invitation' but it is
wholly different question whether such youth can be said

to have been free from fault when he willfully and

deliberately cut open the detonating cap, and placed a
match to the contents, knowing, as he undoubtedly did,
that his action would result in an explosion. On this point,
which must be determined by "the particular
circumstances of this case," the doctrine laid down in the
Turntable and Torpedo cases lends us no direct aid,
although it is worthy of observation that in all of the
"Torpedo" and analogous cases which our attention has
been directed, the record discloses that the plaintiffs, in
whose favor judgments have been affirmed, were of such
tender years that they were held not to have the capacity
to understand the nature or character of the explosive
instruments which fell into their hands.
In the case at bar, plaintiff at the time of the accident was
a well-grown youth of 15, more mature both mentally and
physically than the average boy of his age; he had been to
sea as a cabin boy; was able to earn P2.50 a day as a
mechanical draftsman thirty days after the injury was
incurred; and the record discloses throughout that he was
exceptionally well qualified to take care of himself. The
evidence of record leaves no room for doubt that, despite
his denials on the witness stand, he well knew the
explosive character of the cap with which he was amusing
himself. The series of experiments made by him in his
attempt to produce an explosion, as described by the little
girl who was present, admit of no other explanation. His
attempt to discharge the cap by the use of electricity,
followed by his efforts to explode it with a stone or a
hammer, and the final success of his endeavors brought

about by the application of a match to the contents of the

caps, show clearly that he knew what he was about. Nor
can there be any reasonable doubt that he had reason to
anticipate that the explosion might be dangerous, in view
of the fact that the little girl, 9 years of age, who was within
him at the time when he put the match to the contents of
the cap, became frightened and ran away.
True, he may not have known and probably did not know
the precise nature of the explosion which might be
expected from the ignition of the contents of the cap, and
of course he did not anticipate the resultant injuries which
he incurred; but he well knew that a more or less
dangerous explosion might be expected from his act, and
yet he willfully, recklessly, and knowingly produced the
explosion. It would be going far to say that "according to
his maturity and capacity" he exercised such and "care
and caution" as might reasonably be required of him, or
that defendant or anyone else should be held civilly
responsible for injuries incurred by him under such
circumstances.
The law fixes no arbitrary age at which a minor can be
said to have the necessary capacity to understand and
appreciate the nature and consequences of his own acts,
so as to make it negligence on his part to fail to exercise
due care and precaution in the commission of such acts;
and indeed it would be impracticable and perhaps
impossible so to do, for in the very nature of things the
question of negligence necessarily depends on the ability
of the minor to understand the character of his own acts

and their consequences; and the age at which a minor can

be said to have such ability will necessarily depends of his
own acts and their consequences; and at the age at which
a minor can be said to have such ability will necessarily
vary in accordance with the varying nature of the infinite
variety of acts which may be done by him. But some idea
of the presumed capacity of infants under the laws in force
in these Islands may be gathered from an examination of
the varying ages fixed by our laws at which minors are
conclusively presumed to be capable of exercising certain
rights and incurring certain responsibilities, though it can
not be said that these provisions of law are of much
practical assistance in cases such as that at bar, except
so far as they illustrate the rule that the capacity of a minor
to become responsible for his own acts varies with the
varying circumstances of each case. Under the provisions
of the Penal Code a minor over fifteen years of age is
presumed to be capable of committing a crime and is to
held criminally responsible therefore, although the fact that
he is less than eighteen years of age will be taken into
consideration as an extenuating circumstance (Penal
Code, arts. 8 and 9). At 10 years of age a child may, under
certain circumstances, choose which parent it prefers to
live with (Code of Civil Procedure, sec. 771). At 14 may
petition for the appointment of a guardian (Id., sec. 551),
and may consent or refuse to be adopted (Id., sec. 765).
And males of 14 and females of 12 are capable of
contracting a legal marriage (Civil Code, art. 83; G. O., No.
68, sec. 1).

We are satisfied that the plaintiff in this case had sufficient

capacity and understanding to be sensible of the danger to
which he exposed himself when he put the match to the
contents of the cap; that he was sui juris in the sense that
his age and his experience qualified him to understand
and appreciate the necessity for the exercise of that
degree of caution which would have avoided the injury
which resulted from his own deliberate act; and that the
injury incurred by him must be held to have been the direct
and immediate result of his own willful and reckless act, so
that while it may be true that these injuries would not have
been incurred but for the negligence act of the defendant
in leaving the caps exposed on its premises, nevertheless
plaintiff's own act was the proximate and principal cause of
the accident which inflicted the injury.
The rule of the Roman law was: Quod quis ex culpa sua
damnum sentit, non intelligitur sentire. (Digest, book 50,
tit. 17 rule 203.)
The Patidas contain the following provisions:
The just thing is that a man should suffer the damage
which comes to him through his own fault, and that he
can not demand reparation therefor from another.
(Law 25, tit. 5, Partida 3.)
And they even said that when a man received an
injury through his own acts the grievance should be
against himself and not against another. (Law 2, tit.
7, Partida 2.)

According to ancient sages, when a man received an

injury through his own acts the grievance should be
against himself and not against another. (Law 2, tit.
7 Partida 2.)
And while there does not appear to be anything in the Civil
Code which expressly lays down the law touching
contributory negligence in this jurisdiction, nevertheless,
the interpretation placed upon its provisions by the
supreme court of Spain, and by this court in the case
of Rakes vs. Atlantic, Gulf and Pacific Co. (7 Phil. Rep.,
359), clearly deny to the plaintiff in the case at bar the right
to recover damages from the defendant, in whole or in
part, for the injuries sustained by him.
The judgment of the supreme court of Spain of the 7th of
March, 1902 (93 Jurisprudencia Civil, 391), is directly in
point. In that case the court said:
According to the doctrine expressed in article 1902 of
the Civil Code, fault or negligence is a source of
obligation when between such negligence and the
injury there exists the relation of cause and effect; but
if the injury produced should not be the result of acts
or omissions of a third party, the latter has no
obligation to repair the same, although such acts or
omission were imprudent or unlawful, and much less
when it is shown that the immediate cause of the
injury was the negligence of the injured party himself.
The same court, in its decision of June 12, 1900, said that
"the existence of the alleged fault or negligence is not

sufficient without proof that it, and no other cause, gave

rise to the damage."
See also judgment of October 21, 1903.
To similar effect Scaevola, the learned Spanish writer,
writing under that title in his Jurisprudencia del Codigo
Civil (1902 Anuario, p. 455), commenting on the
decision of March 7, 1902 of the Civil Code, fault or
negligence gives rise to an obligation when between it
and the damage there exists the relation of cause and
effect; but if the damage caused does not arise from
the acts or omissions of a third person, there is no
obligation to make good upon the latter, even though
such acts or omissions be imprudent or illegal, and
much less so when it is shown that the immediate
cause of the damage has been the recklessness of
the injured party himself.
And again
In accordance with the fundamental principle of proof,
that the burden thereof is upon the plaintiff, it is
apparent that it is duty of him who shall claim
damages to establish their existence. The decisions
of April 9, 1896, and March 18, July, and September
27, 1898, have especially supported the principle, the
first setting forth in detail the necessary points of the
proof, which are two: An act or omission on the part of
the person who is to be charged with the liability, and
the production of the damage by said act or omission.

This includes, by inference, the establishment of a

relation of cause or effect between the act or omission
and the damage; the latter must be the direct result of
one of the first two. As the decision of March 22,
1881, said, it is necessary that the damages result
immediately and directly from an act performed
culpably and wrongfully; "necessarily presupposing a
legal ground for imputability." (Decision of October 29,
1887.)
Negligence is not presumed, but must be proven by
him who alleges it. (Scavoela, Jurisprudencia del
Codigo Civil, vol. 6, pp. 551-552.)
(Cf. decisions of supreme court of Spain of June 12, 1900,
and June 23, 1900.)
Finally we think the doctrine in this jurisdiction applicable
to the case at bar was definitely settled in this court in the
maturely considered case of Rakes vs. Atlantic, Gulf and
Pacific Co. (supra), wherein we held that while "There are
many cases (personal injury cases) was exonerated," on
the ground that "the negligence of the plaintiff was the
immediate cause of the casualty" (decisions of the 15th of
January, the 19th of February, and the 7th of March, 1902,
stated in Alcubilla's Index of that year); none of the cases
decided by the supreme court of Spain "define the effect to
be given the negligence of its causes, though not the
principal one, and we are left to seek the theory of the civil
law in the practice of other countries;" and in such cases
we declared that law in this jurisdiction to require the
application of "the principle of proportional damages," but

expressly and definitely denied the right of recovery when

the acts of the injured party were the immediate causes of
the accident.
The doctrine as laid down in that case is as follows:
Difficulty seems to be apprehended in deciding which
acts of the injured party shall be considered
immediate causes of the accident. The test is simple.
Distinction must be made between the accident and
the injury, between the event itself, without which
there could have been no accident, and those acts of
the victim not entering into it, independent of it, but
contributing to his own proper hurt. For instance, the
cause of the accident under review was the
displacement of the crosspiece or the failure to
replace it. This produces the event giving occasion for
damagesthat is, the sinking of the track and the
sliding of the iron rails. To this event, the act of the
plaintiff in walking by the side of the car did not
contribute, although it was an element of the damage
which came to himself. Had the crosspiece been out
of place wholly or partly through his act or omission of
duty, that would have been one of the determining
causes of the event or accident, for which he would
have been responsible. Where he contributes to the
principal occurrence, as one of its determining factors,
he can not recover. Where, in conjunction with the
occurrence, he contributes only to his own injury, he
may recover the amount that the defendant
responsible for the event should pay for such injury,

less a sum deemed a suitable equivalent for his own

imprudence.
We think it is quite clear that under the doctrine thus
stated, the immediate cause of the explosion, the accident
which resulted in plaintiff's injury, was in his own act in
putting a match to the contents of the cap, and that having
"contributed to the principal occurrence, as one of its
determining factors, he can not recover."
We have not deemed it necessary to examine the effect of
plaintiff's action in picking up upon defendant's premises
the detonating caps, the property of defendant, and
carrying the relation of cause and effect between the
negligent act or omission of the defendant in leaving the
caps exposed on its premises and the injuries inflicted
upon the plaintiff by the explosion of one of these caps.
Under the doctrine of the Torpedo cases, such action on
the part of an infant of very tender years would have no
effect in relieving defendant of responsibility, but whether
in view of the well-known fact admitted in defendant's brief
that "boys are snappers-up of unconsidered trifles," a
youth of the age and maturity of plaintiff should be
deemed without fault in picking up the caps in question
under all the circumstances of this case, we neither
discuss nor decide.
Twenty days after the date of this decision let judgment be
entered reversing the judgment of the court below, without
costs to either party in this instance, and ten days
thereafter let the record be returned to the court wherein it
originated, where the judgment will be entered in favor of

the defendant for the costs in first instance and the

complaint dismissed without day. So ordered.
Arellano, C.J., Torres and Moreland, JJ., concur.
Johnson, J., concurs in the result.

Footnotes
1

Phil. Rep., 85.

DISTINCTIONS

[G.R. No. 121917. March 12, 1997]

ROBIN CARIO PADILLA @ ROBINHOOD PADILLA,
petitioner, vs. COURT OF APPEALS and PEOPLE
of the PHILIPPINES, respondents.
DECISION
FRANCISCO, J.:
On October 26, 1992, high-powered firearms with live
ammunitions were found in the possession of petitioner
Robin Padilla @ Robinhood Padilla, i.e.:
"(1) One .357 Caliber revolver, Smith and Wesson,
SN-32919 with six (6) live ammunitions;

"(2) One M-16 Baby Armalite rifle, SN-RP

131120 with four (4) long and one (1) short
magazine with ammunitions;
"(3) One .380 Pietro Beretta, SN-A 35723 Y with
clip and eight (8) ammunitions; and
"(4) Six additional live double action ammunitions
of .38 caliber revolver."[1]
Petitioner was correspondingly charged on December 3,
1992, before the Regional Trial Court (RTC) of Angeles City
with illegal possession of firearms and ammunitions under
P.D. 1866[2] thru the following Information:[3]
"That on or about the 26th day of October, 1992, in
the City of Angeles, Philippines, and within the
jurisdiction of this Honorable Court, the above-named
accused, did then and there willfully, unlawfully and
feloniously have in his possession and under his
custody and control one (1) M-16 Baby Armalite rifle,
SN-RP 131120 with four (4) long and one (1) short
magazines with ammunitions, one (1) .357 caliber
revolver Smith and Wesson, SN-32919 with six (6)
live ammunitions and one (1) .380 Pietro Beretta,
SN-A35723Y with clip and eight (8) ammunitions,
without having the necessary authority and permit to
carry and possess the same.
ALL CONTRARY TO LAW."[4]
The lower court then ordered the arrest of petitioner,[5] but
granted his application for bail.[6] During the arraignment on
January 20, 1993, a plea of not guilty was entered for
petitioner after he refused,[7] upon advice of counsel,[8] to

make any plea.[9] Petitioner waived in writing his right to be

present in any and all stages of the case.[10]
After trial, Angeles City RTC Judge David Rosete
rendered judgment dated April 25, 1994 convicting
petitioner of the crime charged and sentenced him to an
"indeterminate penalty from 17 years, 4 months and 1 day
of reclusion temporal as minimum, to 21 years of reclusion
perpetua, as maximum".[11] Petitioner filed his notice of
appeal on April 28, 1994.[12] Pending the appeal in the
respondent Court of Appeals,[13] the Solicitor-General,
convinced that the conviction shows strong evidence of
guilt, filed on December 2, 1994 a motion to cancel
petitioner's bail bond. The resolution of this motion was
incorporated in the now assailed respondent court's
decision sustaining petitioner's conviction,[14] the dispositive
portion of which reads:
"WHEREFORE, the foregoing circumstances
considered, the appealed decision is hereby
AFFIRMED, and furthermore, the P200,000.00
bailbond posted by accused-appellant for his
provisional liberty, FGU Insurance Corporation Bond
No. JCR (2) 6523, is hereby cancelled. The
Regional Trial Court, Branch 61, Angeles City, is
directed to issue the Order of Arrest of accusedappellant and thereafter his transmittal to the
National Bureau of Prisons thru the Philippine
National Police where the said accused-appellant
shall remain under confinement pending resolution of
his appeal, should he appeal to the Supreme
Court. This shall be immediately executory. The

Regional Trial Court is further directed to submit a

report of compliance herewith.
SO ORDERED."[15]
Petitioner received a copy of this decision on July 26,
1995.[16] On August 9, 1995 he filed a "motion for
reconsideration (and to recall the warrant of arrest)"[17] but
the same was denied by respondent court in its September
20, 1995 Resolution,[18] copy of which was received by
petitioner on September 27, 1995.
The next day,
September 28, petitioner filed the instant petition for review
on certiorari with application for bail[19] followed by two
"supplemental petitions" filed by different counsels,[20] a
"second supplemental petition"[21] and an urgent motion for
the separate resolution of his application for bail. Again,
the Solicitor-General[22] sought the denial of the application
for bail, to which the Court agreed in a Resolution
promulgated on July 31, 1996.[23] The Court also granted
the Solicitor-General's motion to file a consolidated
comment on the petitions and thereafter required the
petitioner to file his reply.[24] However, after his vigorous
resistance and success on the intramural of bail (both in the
respondent court and this Court) and thorough exposition
of petitioner's guilt in his 55-page Brief in the respondent
court, the Solicitor-General now makes a complete
turnabout by filing a "Manifestation In Lieu Of Comment"
praying for petitioner's acquittal.[25]
The People's detailed narration of facts, well-supported
by evidence on record and given credence by respondent
court, is as follows:[26]

"At about 8:00 o'clock in the evening of October 26,

1992, Enrique Manarang and his compadre Danny
Perez were inside the Manukan sa Highway
Restaurant in Sto. Kristo, Angeles City where they
took shelter from the heavy downpour (pp. 5-6, TSN,
February 15, 1993) that had interrupted their ride on
motorcycles (pp. 5-6, ibid.) along McArthur Highway
(ibid). While inside the restaurant, Manarang noticed
a vehicle, a Mitsubishi Pajero, running fast down the
highway prompting him to remark that the vehicle
might get into an accident considering the inclement
weather. (p. 7, Ibid) In the local vernacular, he said
thus: 'Ka bilis na, mumuran pa naman pota
makaaksidente ya.' (p. 7, ibid). True enough,
immediately after the vehicle had passed the
restaurant, Manarang and Perez heard a screeching
sound produced by the sudden and hard braking of a
vehicle running very fast (pp. 7-8, ibid) followed by a
sickening sound of the vehicle hitting something (p.
8, ibid). Danny Cruz, quite sure of what had
happened, remarked 'oy ta na' signifying that
Manarang had been right in his observation (pp. 89, ibid).
"Manarang and Cruz went out to investigate and
immediately saw the vehicle occupying the edge or
shoulder of the highway giving it a slight tilt to its side
(pp. 9-10, ibid). Manarang, being a member of both
the Spectrum, a civic group and the Barangay
Disaster Coordinating Council, decided to report the
incident to the Philippine National Police of Angeles

City (p. 10, ibid). He took out his radio and called the
Viper, the radio controller of the Philippine National
Police of Angeles City (p. 10, ibid). By the time
Manarang completed the call, the vehicle had started
to leave the place of the accident taking the general
direction to the north (p. 11, ibid).
"Manarang went to the location of the accident and
found out that the vehicle had hit somebody (p.
11, ibid).
"He asked Cruz to look after the victim while he went
back to the restaurant, rode on his motorcycle and
chased the vehicle (p. 11 ibid). During the chase he
was able to make out the plate number of the vehicle
as PMA 777 (p. 33, TSN, February 15, 1993). He
called the Viper through the radio once again (p.
34, ibid) reporting that a vehicle heading north with
plate number PMA 777 was involved in a hit and run
accident (p. 20, TSN, June 8, 1993). The Viper, in
the person of SPO2 Ruby Buan, upon receipt of the
second radio call flashed the message to all units of
PNP Angeles City with the order to apprehend the
vehicle (p. 20, ibid). One of the units of the PNP
Angeles City reached by the alarm was its Patrol
Division at Jake Gonzales Street near the Traffic
Division (pp. 5-7, TSN, February 23, 1993). SPO2
Juan C. Borja III and SPO2 Emerlito Miranda
immediately borded a mobile patrol vehicle (Mobile
No. 3) and positioned themselves near the south
approach of Abacan bridge since it was the only
passable way going to the north (pp. 8-9, ibid). It took

them about ten (10) seconds to cover the distance

between their office and the Abacan bridge (p.
9, ibid).
"Another PNP mobile patrol vehicle that responded
to the flash message from SPO2 Buan was Mobile
No. 7 of the Pulongmaragal Detachment which was
then conducting patrol along Don Juico Avenue (pp.
8-9, TSN, March 8, 1993). On board were SPO
Ruben Mercado and SPO3 Tan and SPO2 Odejar (p.
8, ibid). SPO Ruben Mercado immediately told SPO3
Tan to proceed to the MacArthur Highway to
intercept the vehicle with plate number PMA 777 (p.
10, ibid).
"In the meantime, Manarang continued to chase the
vehicle which figured in the hit and run incident, even
passing through a flooded portion of the MacArthur
Highway two (2) feet deep in front of the Iglesia ni
Kristo church but he could not catch up with the
same vehicle (pp. 11-12, February 15, 1993). When
he saw that the car he was chasing went towards
Magalang, he proceeded to Abacan bridge because
he knew Pulongmaragal was not passable (pp. 1214, ibid). When he reached the Abacan bridge, he
found Mobile No. 3 and SPO2 Borja and SPO2
Miranda watching all vehicles coming their way (p.
10, TSN, February 23, 1993). He approached them
and informed them that there was a hit and run
incident (p. 10, ibid). Upon learning that the two
police officers already knew about the incident,
Manarang went back to where he came from (pp. 10-

11; ibid). When Manarang was in front of Tina's

Restaurant, he saw the vehicle that had figured in
the hit and run incident emerging from the corner
adjoining Tina's Restaurant (p. 15, TSN, February
15, 1993). He saw that the license plate hanging in
front of the vehicle bore the identifying number PMA
777 and he followed it (p. 15, ibid) towards the
Abacan bridge.
"Soon the vehicle was within sight of SPO2 Borja
and SPO2 Miranda of Mobile No. 3 (p. 10, TSN,
February 23, 1993). When the vehicle was about
twelve (12) meters away from their position, the two
police officers boarded their Mobile car, switched on
the engine, operated the siren and strobe light and
drove out to intercept the vehicle (p. 11, ibid). They
cut into the path of the vehicle forcing it to stop (p.
11, ibid).
"SPO2 Borja and SPO2 Miranda alighted from
Mobile No. 3 (P. 12, TSN, February 23,
1993). SPO2 Miranda went to the vehicle with plate
number PMA 777 and instructed its driver to alight (p.
12, ibid). The driver rolled down the window and put
his head out while raising both his hands. They
recognized the driver as Robin C. Padilla, appellant
in this case (p. 13, ibid). There was no one else with
him inside the vehicle (p. 24). At that moment, Borja
noticed that Manarang arrived and stopped his
motorcycle behind the vehicle of appellant (p.
14, ibid). SPO2 Miranda told appellant to alight to
which appellant complied. Appellant was wearing a

short leather jacket (p. 16, TSN, March 8, 1993) such

that when he alighted with both his hands raised, a
gun (Exhibit 'C') tucked on the left side of his waist
was revealed (p. 15, TSN, February 23, 1993), its
butt protruding (p. 15, ibid). SPO2 Borja made the
move to confiscate the gun but appellant held the
former's hand alleging that the gun was covered by
legal papers (p. 16, ibid). SPO2 Borja, however,
insisted that if the gun really was covered by legal
papers, it would have to be shown in the office (p.
16, ibid). After disarming appellant, SPO2 Borja told
him about the hit and run incident which was angrily
denied by appellant (p. 17, ibid). By that time, a
crowd had formed at the place (p. 19, ibid). SPO2
Borja checked the cylinder of the gun and find six (6)
live bullets inside (p. 20, ibid).
"While SPO2 Borja and appellant were arguing,
Mobile No. 7 with SPO Ruben Mercado, SPO3 Tan
and SPO2 Odejar on board arrived (pp. 11-12, TSN,
March 8, 1993). As the most senior police officer in
the group, SPO Mercado took over the matter and
informed appellant that he was being arrested for the
hit and run incident (p. 13, ibid). He pointed out to
appellant the fact that the plate number of his vehicle
was dangling and the railing and the hood were
dented (p. 12, ibid). Appellant,
however, arrogantly denied his misdeed and,
instead, played with the crowd by holding their hands
with one hand and pointing to SPO3 Borja with his
right hand saying 'iyan, kinuha ang baril ko' (pp. 13-

15, ibid). Because appellant's jacket was short, his

gesture exposed a long magazine of an armalite rifle
tucked in appellant's back right pocket (p.
16, ibid). SPO Mercado saw this and so when
appellant turned around as he was talking and
proceeding to his vehicle, Mercado confiscated the
magazine from appellant (pp. 1617, ibid). Suspecting that appellant could also be
carrying a rifle inside the vehicle since he had a
magazine, SPO2 Mercado prevented appellant from
going back to his vehicle by opening himself the door
of appellant's vehicle (16-17, ibid). He saw a baby
armalite rifle (Exhibit D) lying horizontally at the front
by the driver's seat. It had a long magazine filled
with live bullets in a semi-automatic mode (pp. 1721, ibid). He asked appellant for the papers covering
the rifle and appellant answered angrily that they
were at his home (pp. 26-27, ibid). SPO Mercado
modified the arrest of appellant by including as its
ground illegal possession of firearms (p.
28, ibid). SPO Mercado then read to appellant his
constitutional rights (pp. 28-29, ibid).
"The police officers brought appellant to the Traffic
Division at Jake Gonzales Boulevard (pp. 31-32, ibid)
where appellant voluntarily surrendered a third
firearm, a pietro berreta pistol (Exhibit 'L') with a
single round in its chamber and a magazine (pp. 3335, ibid) loaded with seven (7) other live
bullets. Appellant also voluntarily surrendered a
black bag containing two additional long magazines

and one short magazine (Exhibits M, N, and O, pp.

36-37, ibid). After appellant had been interrogated
by the Chief of the Traffic Division, he was
transferred to the Police Investigation Division at Sto.
Rosario Street beside the City Hall Building where he
and the firearms and ammunitions were turned over
to SPO2 Rene Jesus Gregorio (pp. 5-10, TSN, July
13, 1993). During the investigation, appellant
admitted possession of the firearms stating that he
used them for shooting (p. 14, ibid). He was not able
to produce any permit to carry or memorandum
receipt to cover the three firearms (pp. 16-18, TSN,
January 25, 1994).
"On November 28, 1992, a certification (Exhibit 'F')
was issued by Captain, Senior Inspector Mario
Espino, PNP, Chief, Record Branch of the Firearms
and Explosives Office (pp. 7-8, TSN, March 4,
1993). The Certification stated that the three
firearms confiscated from appellant, an M-16 Baby
armalite rifle SN-RP 131280, a .357 caliber revolver
Smith and Wesson SN 32919 and a .380 Pietro
Beretta SN-A35720, were not registered in the name
of Robin C. Padilla (p. 6, ibid). A second Certification
dated December 11, 1992 issued by Captain Espino
stated that the three firearms were not also
registered in the name of Robinhood C. Padilla (p.
10, ibid)."
Petitioner's defenses are as follows: (1) that his arrest
was illegal and consequently, the firearms and ammunitions
taken in the course thereof are inadmissible in evidence

under the exclusionary rule; (2) that he is a confidential

agent authorized, under a Mission Order and Memorandum
Receipt, to carry the subject firearms; and (3) that the
penalty for simple illegal possession constitutes excessive
and cruel punishment proscribed by the 1987 Constitution.
After a careful review of the records[27]of this case, the
Court is convinced that petitioner's guilt of the crime
charged stands on terra firma, notwithstanding the SolicitorGeneral's change of heart.
Anent the first defense, petitioner questions the legality
of his arrest. There is no dispute that no warrant was
issued for the arrest of petitioner, but that per se did not
make his apprehension at the Abacan bridge illegal.
Warrantless arrests are sanctioned in the following
instances:[28]
"Sec. 5. Arrest without warrant; when lawful. - A
peace officer or a private person may, without a
warrant, arrest a person:
(a) When, in his presence, the person to be
arrested has committed, is actually committing,
or is attempting to commit an offense;
(b) When an offense has in fact just been
committed, and he has personal knowledge of
facts indicating that the person to be arrested
has committed it.
(c) When the person to be arrested is a prisoner
who has escaped from a penal establishment or
place where he is serving final judgment or

temporarily confined while his case is pending,

or has escaped while being transferred from one
confinement to another.
Paragraph (a) requires that the person be arrested (i) after
he has committed or while he is actually committing or is at
least attempting to commit an offense, (ii) in the presence
of the arresting officer or private person.[29] Both elements
concurred here, as it has been established that petitioner's
vehicle figured in a hit and run - an offense committed in the
"presence" of Manarang, a private person, who then sought
to arrest petitioner. It must be stressed at this point that
"presence" does not only require that the arresting person
sees the offense, but also when he "hears the disturbance
created thereby AND proceeds at once to the scene."[30] As
testified to by Manarang, he heard the screeching of tires
followed by a thud, saw the sideswiped victim
(balut vendor), reported the incident to the police and
thereafter gave chase to the erring Pajero vehicle using his
motorcycle in order to apprehend its driver. After having
sent a radio report to the PNP for assistance, Manarang
proceeded to the Abacan bridge where he found
responding policemen SPO2 Borja and SPO2 Miranda
already positioned near the bridge who effected the actual
arrest of petitioner.[31]
Petitioner would nonetheless insist on the illegality of his
arrest by arguing that the policemen who actually arrested
him were not at the scene of the hit and run.[32] We beg to
disagree. That Manarang decided to seek the aid of the
policemen (who admittedly were nowhere in the vicinity of
the hit and run) in effecting petitioner's arrest, did not in any

way affect the propriety of the apprehension. It was in fact

the most prudent action Manarang could have taken rather
than collaring petitioner by himself, inasmuch as policemen
are unquestionably better trained and well-equipped in
effecting an arrest of a suspect (like herein petitioner) who
, in all probability, could have put up a degree of resistance
which an untrained civilian may not be able to contain
without endangering his own life. Moreover, it is a reality
that curbing lawlessness gains more success when law
enforcers function in collaboration with private citizens. It is
precisely through this cooperation, that the offense herein
involved fortunately did not become an additional entry to
the long list of unreported and unsolved crimes.
It is appropriate to state at this juncture that a suspect,
like petitioner herein, cannot defeat the arrest which has
been set in motion in a public place for want of a warrant as
the police was confronted by an urgent need to render aid
or take action.[33] The exigent circumstances of - hot
pursuit,[34] a fleeing suspect, a moving vehicle, the public
place and the raining nighttime - all created a situation in
which speed is essential and delay improvident.[35] The
Court acknowledges police authority to make the forcible
stop since they had more than mere "reasonable and
articulable" suspicion that the occupant of the vehicle has
been engaged in criminal activity.[36] Moreover, when
caught in flagrante delicto with possession of an unlicensed
firearm (Smith & Wesson) and ammunition (M-16
magazine), petitioner's warrantless arrest was proper as he
was again actually committing another offense (illegal

possession of firearm and ammunitions) and this time in the

presence of a peace officer.[37]
Besides, the policemen's warrantless arrest of petitioner
could likewise be justified under paragraph (b) as he had in
fact just committed an offense. There was no supervening
event or a considerable lapse of time between the hit and
run and the actual apprehension. Moreover, after having
stationed themselves at the Abacan bridge in response to
Manarang's report, the policemen saw for themselves the
fast approaching Pajero of petitioner,[38] its dangling plate
number (PMA 777 as reported by Manarang), and the
dented hood and railings thereof.[39]These formed part of
the arresting police officer's personal knowledge of the facts
indicating that petitioner's Pajero was indeed the vehicle
involved in the hit and run incident. Verily then, the
arresting police officers acted upon verified personal
knowledge and not on unreliable hearsay information.[40]
Furthermore, in accordance with settled jurisprudence,
any objection, defect or irregularity attending an arrest must
be made before the accused enters his plea.[41] Petitioner's
belated challenge thereto aside from his failure to quash the
information, his participation in the trial and by presenting
his evidence, placed him in estoppel to assail the legality of
his arrest.[42]Likewise, by applying for bail, petitioner
patently waived such irregularities and defects.[43]
We now go to the firearms and ammunitions seized from
petitioner without a search warrant, the admissibility in
evidence of which, we uphold.

The five (5) well-settled instances when a warrantless

search and seizure of property is valid,[44] are as follows:
1.
warrantless search incidental to a lawful
arrest recognized under Section 12, Rule 126 of
the Rules of Court[45] and by prevailing
jurisprudence[46],
2.
Seizure of evidence in "plain view", the
elements of which are:[47]
(a).
a prior valid intrusion based on the
valid warrantless arrest in which the police
are legally present in the pursuit of their
official duties;
(b).
the evidence
was inadvertently discovered by the police
who had the right to be where they are;
(c).
the evidence must be immediately
apparent, and
(d).
"plain view" justified mere seizure of
evidence without further search.[48]
3.
search of a moving vehicle.[49] Highly
regulated by the government, the vehicle's
inherent mobility reduces expectation of privacy
especially when its transit in public thoroughfares
furnishes a highly reasonable suspicion
amounting to probable cause that the occupant
committed a criminal activity.[50]
4.

consented warrantless search, and

5.

customs search.

In conformity with respondent court's observation, it

indeed appears that the authorities stumbled upon
petitioner's firearms and ammunitions without even
undertaking any active search which, as it is commonly
understood, is a prying into hidden places for that which is
concealed.[51] The seizure of the Smith & Wesson revolver
and an M-16 rifle magazine was justified for they came
within "plain view" of the policemen who inadvertently
discovered the revolver and magazine tucked in petitioner's
waist and back pocket respectively, when he raised his
hands after alighting from his Pajero. The same justification
applies to the confiscation of the M-16 armalite rifle which
was immediately apparent to the policemen as they took a
casual glance at the Pajero and saw said rifle lying
horizontally near the driver's seat.[52] Thus it has been held
that:
"(W)hen in pursuing an illegal action or in the
commission of a criminal offense, the . . . police
officers should happen to discover a criminal offense
being committed by any person, they are not
precluded from performing their duties as police
officers for the apprehension of the guilty person and
the taking of the corpus delicti."[53]
"Objects whose possession are prohibited by law
inadvertently found in plain view are subject to
seizure even without a warrant."[54]
With respect to the Berreta pistol and a black bag containing
assorted magazines, petitioner voluntarily surrendered

them to the police.[55] This latter gesture of petitioner

indicated a waiver of his right against the alleged search
and seizure[56], and that his failure to quash the information
estopped him from assailing any purported defect.[57]
Even assuming that the firearms and ammunitions were
products of an active search done by the authorities on the
person and vehicle of petitioner, their seizure without a
search warrant nonetheless can still be justified under a
search incidental to a lawful arrest (first instance). Once
the lawful arrest was effected, the police may undertake a
protective search[58] of the passenger compartment and
containers in the vehicle[59] which are within petitioner's
grabbing distance regardless of the nature of the
offense.[60] This satisfied the two-tiered test of an incidental
search: (i) the item to be searched (vehicle) was within the
arrestee's custody or area of immediate control[61] and (ii)
the search was contemporaneous with the arrest.[62] The
products of that search are admissible evidence not
excluded by the exclusionary rule. Another justification is a
search of a moving vehicle (third instance). In connection
therewith, a warrantless search is constitutionally
permissible when, as in this case, the officers conducting
the search have reasonable or probable cause to believe,
before the search, that either the motorist is a law-offender
(like herein petitioner with respect to the hit and run) or the
contents or cargo of the vehicle are or have been
instruments or the subject matter or the proceeds of some
criminal offense.[63]
Anent his second defense, petitioner contends that he
could not be convicted of violating P.D. 1866 because he is

an appointed civilian agent authorized to possess and carry

the subject firearms and ammunition as evidenced by a
Mission Order[64] and Memorandum Receipt duly issued by
PNP Supt. Rodialo Gumtang, the deputy commander of
Task Force Aguila, Lianga, Surigao del Sur. The contention
lacks merit.
In crimes involving illegal possession of firearm, two
requisites must be established, viz.: (1) the existence of the
subject firearm and, (2) the fact that the accused who
owned or possessed the firearm does not have the
corresponding license or permit to possess.[65] The first
element is beyond dispute as the subject firearms and
ammunitions[66] were seized from petitioner's possession
via a valid warrantless search, identified and offered in
evidence during trial. As to the second element, the same
was convincingly proven by the prosecution. Indeed,
petitioner's purported Mission Order and Memorandum
Receipt are inferior in the face of the more formidable
evidence for the prosecution as our meticulous review of
the records reveals that the Mission Order and
Memorandum Receipt were mere afterthoughts contrived
and issued under suspicious circumstances. On this score,
we lift from respondent court's incisive observation. Thus:
"Appellant's contention is predicated on the
assumption that the Memorandum Receipts and
Mission Order were issued before the subject
firearms were seized and confiscated from him by
the police officers in Angeles City. That is not
so. The evidence adduced indicate that the
Memorandum Receipts and Mission Order were

prepared and executed long after appellant had been

apprehended on October 26, 1992.
"Appellant, when apprehended, could not show any
document as proof of his authority to possess and
carry the subject firearms. During the preliminary
investigation of the charge against him for illegal
possession of firearms and ammunitions he could
not, despite the ample time given him, present any
proper document showing his authority. If he had, in
actuality, the Memorandum Receipts and Missions
Order, he could have produced those documents
easily, if not at the time of apprehension, at least
during the preliminary investigation. But neither
appellant nor his counsel inform the prosecutor that
appellant is authorized to possess and carry the
subject firearms under Memorandum Receipt and
Mission Order. At the initial presentation of his
evidence in court, appellant could have produced
these documents to belie the charged against
him. Appellant did not. He did not even take the
witness stand to explain his possession of the
subject firearms.
"Even in appellant's Demurrer to Evidence filed after
the prosecution rested contain no allegation of a
Memorandum Receipts and Mission Order
authorizing appellant to possess and carry the
subject firearms.
"At the initial presentation of appellant's evidence,
the witness cited was one James Neneng to whom a
subpoena was issued. Superintendent Gumtang

was not even mentioned. James Neneng appeared

in court but was not presented by the
defense. Subsequent hearings were reset until the
defense found Superintendent Gumtang who
appeared in court without subpoena on January 13,
1994."[67]
The Court is baffled why petitioner failed to produce and
present the Mission Order and Memorandum Receipt if they
were
really
issued
and
existing
before
his
apprehension. Petitioner's alternative excuses that the
subject firearms were intended for theatrical purposes, or
that they were owned by the Presidential Security Group, or
that his Mission Order and Memorandum Receipt were left
at home, further compound their irregularity. As to be
reasonably expected, an accused claiming innocence, like
herein petitioner, would grab the earliest opportunity to
present the Mission Order and Memorandum Receipt in
question and save himself from the long and agonizing
public trial and spare him from proffering inconsistent
excuses. In fact, the Mission Order itself, as well as the
Letter-Directive of the AFP Chief of Staff, is explicit in
providing that:
"VIII. c. When a Mission Order is requested for
verification by enforcement units/personnels
such as PNP, Military Brigade and other Military
Police Units of AFP, the Mission Order should be
shown without resentment to avoid
embarrassment and/or misunderstanding.
"IX. d. Implicit to this Mission Order is the
injunction that the confidential instruction will be

carried out through all legal means and do not

cover an actuation in violation of laws. In the
latter event, this Mission Order is rendered
inoperative in respect to such violation."[68]
which directive petitioner failed to heed without cogent
explanation.
The authenticity and validity of the Mission Order and
Memorandum
Receipt,
moreover,
were
ably
controverted. Witness for the prosecution Police Supt.
Durendes denied under oath his signature on the dorsal
side of the Mission Order and declared further that he did
not authorize anyone to sign in his behalf.[69] His surname
thereon, we note, was glaringly misspelled as
"Durembes."[70] In addition, only Unit Commanders and
Chief of Offices have the authority to issue Mission Orders
and Memorandum Receipts under the Guidelines on the
Issuance of MOs, MRs, & PCFORs.[71] PNP Supt. Rodialo
Gumtang who issued petitioner's Mission Order and
Memorandum Receipt is neither a Unit Commander nor the
Chief of Office, but a mere deputy commander. Having
emanated from an unauthorized source, petitioner's
Mission Order and Memorandum Receipt are infirm and
lacking in force and effect. Besides, the Mission Order
covers "Recom 1-12-Baguio City,"[72] areas outside Supt.
Gumtang's area of responsibility thereby needing prior
approval "by next higher Headquarters"[73] which is absent
in this case. The Memorandum Receipt is also unsupported
by a certification as required by the March 5, 1988
Memorandum of the Secretary of Defense which pertinently
provides that:

"No memorandum receipt shall be issued for a

CCS firearms without corresponding certification
from the corresponding Responsible Supply
Officer of the appropriate AFP unit that such
firearm has been officially taken up in that units
property book, and that report of such action has
been reported to higher AFP authority."
Had petitioner's Memorandum Receipt been authentic, we
see no reason why he cannot present the corresponding
certification as well.
What is even more peculiar is that petitioner's name, as
certified to by the Director for Personnel of the PNP, does
not even appear in the Plantilla of Non-Uniform Personnel
or in the list of Civilian Agents or Employees of the PNP
which could justify the issuance of a Mission Order, a fact
admitted by petitioner's counsel.[74] The implementing rules
of P.D. 1866 issued by the then PC-INP Chief and DirectorGeneral Lt. Gen. Fidel V. Ramos are clear and
unambiguous, thus:
"No Mission Order shall be issued to any civilian
agent authorizing the same to carry firearms
outside residence unless he/she is included in
the regular plantilla of the government
agency involved in law enforcement and is
receiving regular compensation for the services
he/she is rendering in the agency. Further, the
civilian agent must be included in a specific law
enforcement/police/intelligence project proposal or
special project which specifically required the use of
firearms(s) to insure its accomplishment and that the

project is duly approved at the PC Regional

Command level or its equivalent level in other major
services of the AFP, INP and NBI, or at higher levels
of command."[75]
Circular No. 1, dated January 6, 1986, of the then Ministry
of Justice likewise provides as follows:
"If mission orders are issued to civilians (not
members of the uniformed service), they must be
civilian agents included in the regular plantilla of the
government agency involved in law enforcement and
are receiving regular compensation for the service
they are rendering."
That petitioner's Mission Order and Memorandum Receipt
were fabricated pieces of evidence is accentuated all the
more by the testimony and certification of the Chief of the
Records Branch of the firearms and Explosives Office of the
PNP declaring that petitioner's confiscated firearms are not
licensed or registered in the name of the petitioner.[76] Thus:
"Q. In all these files that you have just mentioned Mr.
Witness, what did you find, if any?
"A. I found that a certain Robin C. Padilla is a licensed
registered owner of one 9 mm pistol, Smith
and Wesson with Serial No. TCT 8214 and the
following firearms being asked whether it is
registered or not, I did not find any records, the
M-16 and the caliber .357 and the caliber .380
but there is a firearm with the same serial
number which is the same as that licensed

and/or registered in the name of one Albert

Villanueva Fallorina.
"Q. So in short, the only licensed firearms in the
name of accused Robin C. Padilla is a pistol,
Smith and Wesson, caliber 9 mm with Serial No.
TCT 8214?
"A. Yes, sir.
"Q. And the firearms that were the subject of this
case are not listed in the names of the accused
in this case?
"A. Yes, sir.[77]
xxx

xxx
xxx

And the certification which provides as follows:

Republic of the
Philippines
Department of the Interior
and Local Government
GENERAL HEADQUARTERS
PHILIPPINE NATIONAL POLICE
FIREARMS AND
EXPLOSIVES OFFICE
Camp Crame, Quezon
City
"PNPFEO5
28 November 1992
"C E R T I F I C A T I O N

"TO WHOM IT MAY CONCERN:

"THIS IS TO CERTIFY that Robin C. Padilla of 59 Labo
St., Quezon City is a licensed/registered holder of Pistol
Smith and Wesson Cal 9mm with serial number TCT8214
covered by License No. RL M76C4476687.
"Further certify that the following firearms are not
registered with this Office per verification from
available records on file this Office as of this date:
M16 Baby Armalite SN-RP131120
Revolver Cal 357 SN-3219
Pistol Cal 380 Pietro Beretta SN-35723
"However, we have on file one Pistol Cal 380, Beretta
with serial number 35723Y, licensed/registered to one
Albert Villanueva Fallorina of 29 San Juan St., Capitol
Pasig, MM under Re-Registered License.
"This certification is issued pursuant to Subpoena from
City of Angeles.
"FOR THE CHIEF, FEO:
(Sgd.)
JOSE MARIO M.
ESPINO
Sr. Inspector, PNP
Chief, Records
Branch" [78]

In several occasions, the Court has ruled that either the

testimony of a representative of, or a certification from, the
PNP Firearms and Explosives Office (FEO) attesting that a
person is not a licensee of any firearm would suffice to
prove beyond reasonable doubt the second element of
illegal possession of firearm.[79] In People vs. Tobias,[80] we
reiterated that such certification is sufficient to show that a
person has in fact no license. From the foregoing
discussion, the fact that petitioner does not have the license
or permit to possess was overwhelmingly proven by the
prosecution. The certification may even be dispensed with
in the light of the evidence[81] that an M-16 rifle and any short
firearm higher than a .38 caliber pistol, akin to the
confiscated firearms, cannot be licensed to a civilian,[82] as
in the case of petitioner. The Court, therefore, entertains
no doubt in affirming petitioner's conviction especially as we
find no plausible reason, and none was presented, to depart
from the factual findings of both the trial court and
respondent court which, as a rule, are accorded by the
Court with respect and finality.[83]
Anent his third defense, petitioner faults respondent
court "in applying P.D. 1866 in a democratic ambience (sic)
and a non-subversive context" and adds that respondent
court should have applied instead the previous laws on
illegal possession of firearms since the reason for the
penalty imposed under P.D. 1866 no longer exists.[84] He
stresses that the penalty of 17 years and 4 months to 21
years for simple illegal possession of firearm is cruel and
excessive in contravention of the Constitution.[85]

The contentions do not merit serious consideration. The

trial court and the respondent court are bound to apply the
governing law at the time of appellant's commission of the
offense for it is a rule that laws are repealed only by
subsequent ones.[86] Indeed, it is the duty of judicial officers
to respect and apply the law as it stands.[87] And until its
repeal, respondent court can not be faulted for applying
P.D. 1866 which abrogated the previous statutes adverted
to by petitioner.
Equally lacking in merit is appellant's allegation that the
penalty for simple illegal possession is unconstitutional. The
penalty for simple possession of firearm, it should be
stressed, ranges from reclusion temporal maximum
to reclusion perpetua contrary to appellant's erroneous
averment. The severity of a penalty does not ipso
facto make the same cruel and excessive.
"It takes more than merely being harsh, excessive, out of
proportion, or severe for a penalty to be obnoxious to the
Constitution. 'The fact that the punishment authorized by
the statute is severe does not make it cruel and
unusual.' (24 C.J.S., 1187-1188). Expressed in other
terms, it has been held that to come under the ban, the
punishment must be 'flagrantly and plainly
oppressive', 'wholly disproportionate to the nature of the
offense as to shock the moral sense of the community' "[88]
It is well-settled that as far as the constitutional prohibition
goes, it is not so much the extent as the nature of the
punishment that determines whether it is, or is not, cruel
and unusual and that sentences of imprisonment, though

perceived to be harsh, are not cruel or unusual if within

statutory limits.[89]
Moreover, every law has in its favor the presumption of
constitutionality. The burden of proving the invalidity of the
statute in question lies with the appellant which burden, we
note, was not convincingly discharged. To justify
nullification of the law, there must be a clear and
unequivocal breach of the Constitution, not a doubtful and
argumentative implication,[90] as in this case. In fact, the
constitutionality of P.D. 1866 has been upheld twice by this
Court.[91] Just recently, the Court declared that "the
pertinent laws on illegal possession of firearms [are not]
contrary to any provision
of the Constitution. .
[92]
." Appellant's grievance on the wisdom of the prescribed
penalty should not be addressed to us. Courts are not
concerned with the wisdom, efficacy or morality of
laws. That question falls exclusively within the province
of Congress which enacts them and the Chief Executive
who approves or vetoes them. The only function of the
courts, we reiterate, is to interpret and apply the laws.
With respect to the penalty imposed by the trial court as
affirmed by respondent court (17 years 4 months and 1
day of reclusion temporal, as minimum, to 21 years
of reclusion perpetua, as maximum), we reduce the same
in line with the fairly recent case of People v. Lian[93] where
the Court en banc provided that the indeterminate penalty
imposable for simple illegal possession of firearm, without
any mitigating or aggravating circumstance, should be
within the range of ten (10) years and one (1) day to twelve
years (12) of prision mayor, as minimum, to eighteen (18)

years, eight (8) months and one (1) day to twenty (20)
of reclusion temporal, as maximum. This is discernible from
the following explanation by the Court:
"In the case at bar, no mitigating or aggravating
circumstances have been alleged or proved, In
accordance with the doctrine regarding special laws
explained in People v. Simon,[94] although Presidential
Decree No. 1866 is a special law, the penalties therein
were taken from the Revised Penal Code, hence the rules
in said Code for graduating by degrees or determining the
proper period should be applied. Consequently, the
penalty for the offense of simple illegal possession of
firearm is the medium period of the complex penalty in
said Section 1, that is, 18 years, 8 months and 1 day to 20
years.
"This penalty, being that which is to be actually imposed in
accordance with the rules therefor and not merely
imposable as a general prescription under the law, shall
be the maximum of the range of the indeterminate
sentence. The minimum thereof shall be taken, as
aforesaid, from any period of the penalty next lower in
degree, which is, prision mayor in its maximum period
to reclusion temporal in its medium period.[95]
WHEREFORE, premises considered, the decision of the
Court of Appeals sustaining petitioner's conviction by the
lower court of the crime of simple illegal possession of
firearms and ammunitions is AFFIRMED EXCEPT that
petitioner's indeterminate penalty is MODIFIED to ten (10)

years and one (1) day, as minimum, to eighteen (18) years,

eight (8) months and one (1) day, as maximum.
SO ORDERED

[G.R. No. 147703. April 14, 2004]

PHILIPPINE RABBIT BUS LINES, INC., petitioner,
vs. PEOPLE OF THE PHILIPPINES, respondent.
DECISION
PANGANIBAN, J.:
When the accused-employee absconds or jumps bail,
the judgment meted out becomes final and executory. The
employer cannot defeat the finality of the judgment by filing
a notice of appeal on its own behalf in the guise of asking
for a review of its subsidiary civil liability. Both the primary
civil liability of the accused-employee and the subsidiary
civil liability of the employer are carried in one single
decision that has become final and executory.
The Case
Before this Court is a Petition for Review[1] under Rule 45
of the Rules of Court, assailing the March 29, 2000[2] and
the March 27, 2001[3] Resolutions of the Court of Appeals
(CA) in CA-GR CV No. 59390. Petitioners appeal from the

judgment of the Regional Trial Court (RTC) of San

Fernando, La Union in Criminal Case No. 2535 was
dismissed in the first Resolution as follows:
WHEREFORE, for all the foregoing, the motion to dismiss
is GRANTED and the appeal is ordered DISMISSED.[4]
The second Resolution denied petitioners Motion for
Reconsideration.[5]
The Facts
The facts of the case are summarized by the CA in this
wise:
On July 27, 1994, accused [Napoleon
Roman y Macadangdang] was found guilty and convicted
of the crime of reckless imprudence resulting to triple
homicide, multiple physical injuries and damage to
property and was sentenced to suffer the penalty of four
(4) years, nine (9) months and eleven (11) days to six (6)
years, and to pay damages as follows:
a.

to pay the heirs of JUSTINO TORRES the

sum of P50,000.00 as indemnity for his death,
plus the sum of P25,383.00, for funeral
expenses, his unearned income for one year
at P2,500.00 a month, P50,000.00 as indemnity
for the support of Renato Torres, and the further
sum of P300,000.00 as moral damages;

b.

to the heirs of ESTRELLA VELERO, the sum

of P50,000.00 as indemnity for her death, the
sum of P237,323.75 for funeral expenses, her
unearned income for three years at P45,000.00
per annum, and the further sum of P1,000,000.00
as moral damages and P200,000.00 as
attorneys fees[;]

c.

to the heirs of LORNA ANCHETA, the sum

of P50,000.00 as indemnity for her death, the
sum of P22,838.00 as funeral expenses, the sum
of P20,544.94 as medical expenses and her loss
of income for 30 years at P1,000.00 per month,
and the further sum of P100,000.00 for moral
damages;

d.

to MAUREEN BRENNAN, the sum

of P229,654.00 as hospital expenses, doctors
fees of P170,000.00 for the orthopedic
surgeon, P22,500.00 for the [n]eurologist, an
additional indemnity [of] at least P150,000.00 to
cover future correction of deformity of her limbs,
and moral damages in the amount
of P1,000,000.00;

e.

to ROSIE BALAJO, the sum of P3,561.46 as

medical expenses, P2,000.00 as loss of income,
and P25,000.00 as moral damages;

f.

to TERESITA TAMONDONG, the sum

of P19,800.47 as medical expenses, P800.00 for

loss of income, and P25,000.00 as moral

damages;
g.

to JULIANA TABTAB, the amount of P580.81

as medical expenses, P4,600.00 as actual
damages and her loss earnings of P1,400.00 as
well as moral damages in the amount
of P10,000.00;

h.

to MIGUEL ARQUITOLA, the sum

of P12,473.82 as hospital expenses, P14,530.00
as doctors fees, P1,000.00 for medicines
and P50,000.00 as moral damages;

i.

to CLARITA CABANBAN, the sum of P155.00

for medical expenses, P87.00 for
medicines, P1,710.00 as actual damages
and P5,000.00 as moral damages;

j.

to MARIANO CABANBAN, the sum

of P1,395.00 for hospital bills, P500.00 for
medicine, P2,100.00 as actual
damages, P1,200.00 for loss of income
and P5,000.00 as moral damages;

k.

to La Union Electric Company as the

registered owner of the Toyota Hi-Ace Van, the
amount of P250,000.00 as actual damages for
the cost of the totally wrecked vehicle; to the
owner of the jeepney, the amount of P22,698.38
as actual damages;

The court further ruled that [petitioner], in the event of the

insolvency of accused, shall be liable for the civil liabilities
of the accused. Evidently, the judgment against accused
had become final and executory.
Admittedly, accused had jumped bail and remained atlarge. It is worth mention[ing] that Section 8, Rule 124 of
the Rules of Court authorizes the dismissal of appeal
when appellant jumps bail. Counsel for accused, also
admittedly hired and provided by [petitioner], filed a notice
of appeal which was denied by the trial court. We affirmed
the denial of the notice of appeal filed in behalf of
accused.
Simultaneously, on August 6, 1994, [petitioner] filed its
notice of appeal from the judgment of the trial
court. On April 29, 1997, the trial court gave due course to
[petitioners] notice of appeal. OnDecember 8, 1998,
[petitioner] filed its brief. On December 9, 1998, the Office
of the Solicitor General received [a] copy of [petitioners]
brief. On January 8, 1999, the OSG moved to be excused
from filing [respondents] brief on the ground that the
OSGs authority to represent People is confined to criminal
cases on appeal. The motion was however denied per
Our resolution of May 31, 1999. On March 2, 1999,
[respondent]/private prosecutor filed the instant motion to
dismiss.[6] (Citations omitted)
Ruling of the Court of Appeals

The CA ruled that the institution of a criminal case

implied the institution also of the civil action arising from the
offense. Thus, once determined in the criminal case
against the accused-employee, the employers subsidiary
civil liability as set forth in Article 103 of the Revised Penal
Code becomes conclusive and enforceable.
The appellate court further held that to allow an employer
to dispute independently the civil liability fixed in the criminal
case against the accused-employee would be to amend,
nullify or defeat a final judgment. Since the notice of appeal
filed by the accused had already been dismissed by the CA,
then the judgment of conviction and the award of civil
liability became final and executory. Included in the civil
liability of the accused was the employers subsidiary
liability.
Hence, this Petition.[7]
The Issues
Petitioner states the issues of this case as follows:
A.
Whether or not an employer, who dutifully
participated in the defense of its accused-employee, may
appeal the judgment of conviction independently of the
accused.
B.
Whether or not the doctrines of Alvarez v. Court
of Appeals (158 SCRA 57) and Yusay v. Adil (164 SCRA
494) apply to the instant case.[8]

There is really only one issue. Item B above is merely

an adjunct to Item A.
The Courts Ruling
The Petition has no merit.
Main Issue:
Propriety of Appeal by the Employer
Pointing out that it had seasonably filed a notice of
appeal from the RTC Decision, petitioner contends that the
judgment of conviction against the accused-employee has
not attained finality. The former insists that its appeal
stayed the finality, notwithstanding the fact that the latter
had jumped bail. In effect, petitioner argues that its appeal
takes the place of that of the accused-employee.
We are not persuaded.
Appeals in Criminal Cases
Section 1 of Rule 122 of the 2000 Revised Rules of
Criminal Procedure states thus:
Any party may appeal from a judgment or final order,
unless the accused will be placed in double jeopardy.
Clearly, both the accused and the prosecution may
appeal a criminal case, but the government may do so only
if the accused would not thereby be placed in double

jeopardy.[9]Furthermore, the prosecution cannot appeal on

the ground that the accused should have been given a more
severe penalty.[10] On the other hand, the offended parties
may also appeal the judgment with respect to their right to
civil liability. If the accused has the right to appeal the
judgment of conviction, the offended parties should have
the same right to appeal as much of the judgment as is
prejudicial to them.[11]
Appeal by the Accused
Who Jumps Bail
Well-established in our jurisdiction is the principle that
the appellate court may, upon motion or motu proprio,
dismiss an appeal during its pendency if the accused jumps
bail. The second paragraph of Section 8 of Rule 124 of the
2000 Revised Rules of Criminal Procedure provides:
The Court of Appeals may also, upon motion of the
appellee or motu proprio, dismiss the appeal if the
appellant escapes from prison or confinement, jumps bail
or flees to a foreign country during the pendency of the
appeal.[12]
This rule is based on the rationale that appellants lose
their standing in court when they abscond. Unless they
surrender or submit to the courts jurisdiction, they are
deemed to have waived their right to seek judicial relief.[13]
Moreover, this doctrine applies not only to the accused
who jumps bail during the appeal, but also to one who does

so during the trial. Justice Florenz D. Regalado succinctly

explains the principle in this wise:
x x x. When, as in this case, the accused escaped after
his arraignment and during the trial, but the trial in
absentia proceeded resulting in the promulgation of a
judgment against him and his counsel appealed, since he
nonetheless remained at large his appeal must be
dismissed by analogy with the aforesaid provision of this
Rule [Rule 124, 8 of the Rules on Criminal Procedure]. x
x x[14]
The accused cannot be accorded the right to appeal
unless they voluntarily submit to the jurisdiction of the court
or are otherwise arrested within 15 days from notice of the
judgment against them.[15] While at large, they cannot seek
relief from the court, as they are deemed to have waived
the appeal.[16]
Finality of a Decision
in a Criminal Case
As to when a judgment of conviction attains finality is
explained in Section 7 of Rule 120 of the 2000 Rules of
Criminal Procedure, which we quote:
A judgment of conviction may, upon motion of the
accused, be modified or set aside before it becomes final
or before appeal is perfected. Except where the death
penalty is imposed, a judgment becomes final after the
lapse of the period for perfecting an appeal, or when the

sentence has been partially or totally satisfied or served,

or when the accused has waived in writing his right to
appeal, or has applied for probation.
In the case before us, the accused-employee has
escaped and refused to surrender to the proper authorities;
thus, he is deemed to have abandoned his
appeal. Consequently, the judgment against him has
become final and executory.[17]
Liability of an Employer
in a Finding of Guilt
Article 102 of the Revised Penal Code states the
subsidiary civil liabilities of innkeepers, as follows:
In default of the persons criminally liable, innkeepers,
tavernkeepers, and any other persons or corporations
shall be civilly liable for crimes committed in their
establishments, in all cases where a violation of municipal
ordinances or some general or special police regulation
shall have been committed by them or their employees.
Innkeepers are also subsidiary liable for restitution of
goods taken by robbery or theft within their houses from
guests lodging therein, or for payment of the value thereof,
provided that such guests shall have notified in advance
the innkeeper himself, or the person representing him, of
the deposit of such goods within the inn; and shall
furthermore have followed the directions which such
innkeeper or his representative may have given them with

respect to the care and vigilance over such goods. No

liability shall attach in case of robbery with violence
against or intimidation of persons unless committed by the
innkeepers employees.
Moreover, the foregoing subsidiary liability applies to
employers, according to Article 103 which reads:
The subsidiary liability established in the next preceding
article shall also apply to employers, teachers, persons,
and corporations engaged in any kind of industry for
felonies committed by their servants, pupils, workmen,
apprentices, or employees in the discharge of their duties.
Having laid all these basic rules and principles, we now
address the main issue raised by petitioner.
Civil Liability Deemed Instituted
in the Criminal Prosecution
At the outset, we must explain that the 2000 Rules of
Criminal Procedure has clarified what civil actions are
deemed instituted in a criminal prosecution.
Section 1 of Rule 111 of the current Rules of Criminal
Procedure provides:
When a criminal action is instituted, the civil action for the
recovery of civil liability arising from the offense charged
shall be deemed instituted with the criminal action unless
the offended party waives the civil action, reserves the

right to institute it separately or institutes the civil action

prior to the criminal action.
x x x

xxx

x x x

Only the civil liability of the accused arising from the

crime charged is deemed impliedly instituted in a criminal
action, that is, unless the offended party waives the civil
action, reserves the right to institute it separately, or
institutes it prior to the criminal action.[18] Hence, the
subsidiary civil liability of the employer under Article 103 of
the Revised Penal Code may be enforced by execution on
the basis of the judgment of conviction meted out to the
employee.[19]
It is clear that the 2000 Rules deleted the requirement of
reserving independent civil actions and allowed these to
proceed separately from criminal actions. Thus, the civil
actions referred to in Articles 32,[20] 33,[21]34[22] and
2176[23] of the Civil Code shall remain separate, distinct
and independent of any criminal prosecution based on the
same act. Here are some direct consequences of such
revision and omission:
1. The right to bring the foregoing actions based on the
Civil Code need not be reserved in the criminal prosecution,
since they are not deemed included therein.
2. The institution or the waiver of the right to file a
separate civil action arising from the crime charged does
not extinguish the right to bring such action.
3. The only limitation is that the offended party cannot
recover more than once for the same act or omission.[24]

What is deemed instituted in every criminal prosecution

is the civil liability arising from the crime or delict per se (civil
liability ex delicto), but not those liabilities arising from
quasi-delicts, contracts or quasi-contracts. In fact, even if a
civil action is filed separately, the ex delicto civil liability in
the criminal prosecution remains, and the offended party
may -- subject to the control of the prosecutor -- still
intervene in the criminal action, in order to protect the
remaining civil interest therein.[25]
This discussion is completely in accord with the Revised
Penal Code, which states that [e]very person criminally
liable for a felony is also civilly liable.[26]
Petitioner argues that, as an employer, it is considered a
party to the criminal case and is conclusively bound by the
outcome thereof.
Consequently, petitioner must be
accorded the right to pursue the case to its logical
conclusion -- including the appeal.
The argument has no merit. Undisputedly, petitioner is
not a direct party to the criminal case, which was filed solely
against Napoleon M. Roman, its employee.
In its Memorandum, petitioner cited a comprehensive list
of cases dealing with the subsidiary liability of
employers. Thereafter, it noted that none can be applied to
it, because in all th[o]se cases, the accuseds employer did
not interpose an appeal.[27] Indeed, petitioner cannot cite
any single case in which the employer appealed, precisely
because an appeal in such circumstances is not possible.
The cases dealing with the subsidiary liability of
employers uniformly declare that, strictly speaking, they are

not parties to the criminal cases instituted against their

employees.[28]Although in substance and in effect, they
have an interest therein, this fact should be viewed in the
light of their subsidiary liability. While they may assist their
employees to the extent of supplying the latters lawyers, as
in the present case, the former cannot act independently on
their own behalf, but can only defend the accused.
Waiver of Constitutional Safeguard
Against Double Jeopardy
Petitioners appeal obviously aims to have the accusedemployee absolved of his criminal responsibility and the
judgment reviewed as a whole. These intentions are
apparent from its Appellants Brief[29] filed with the CA and
from its Petition[30] before us, both of which claim that the
trial courts finding of guilt is not supported by competent
evidence.[31]
An appeal from the sentence of the trial court implies a
waiver of the constitutional safeguard against double
jeopardy and throws the whole case open to a review by the
appellate court. The latter is then called upon to render
judgment as law and justice dictate, whether favorable or
unfavorable to the appellant.[32] This is the risk involved
when the accused decides to appeal a sentence of
conviction.[33] Indeed, appellate courts have the power to
reverse, affirm or modify the judgment of the lower court
and to increase or reduce the penalty it imposed.[34]
If the present appeal is given course, the whole case
against the accused-employee becomes open to review. It

thus follows that a penalty higher than that which has

already been imposed by the trial court may be meted out
to him. Petitioners appeal would thus violate his right
against double jeopardy, since the judgment against him
could become subject to modification without his consent.
We are not in a position to second-guess the reason why
the accused effectively waived his right to appeal by
jumping bail. It is clear, though, that petitioner may not
appeal without violating his right against double jeopardy.
Effect of Absconding
on the Appeal Process
Moreover, within the meaning of the principles governing
the prevailing criminal procedure, the accused impliedly
withdrew his appeal by jumping bail and thereby made the
judgment of the court below final.[35] Having been a fugitive
from justice for a long period of time, he is deemed to have
waived his right to appeal. Thus, his conviction is now final
and executory. The Court in People v. Ang Gioc[36] ruled:
There are certain fundamental rights which cannot be
waived even by the accused himself, but the right of
appeal is not one of them. This right is granted solely for
the benefit of the accused. He may avail of it or not, as he
pleases. He may waive it either expressly or by
implication. When the accused flees after the case has
been submitted to the court for decision, he will be
deemed to have waived his right to appeal from the
judgment rendered against him. x x x.[37]

By fleeing, the herein accused exhibited contempt of the

authority of the court and placed himself in a position to
speculate on his chances for a reversal. In the process, he
kept himself out of the reach of justice, but hoped to render
the judgment nugatory at his option.[38] Such conduct is
intolerable and does not invite leniency on the part of the
appellate court.[39]
Consequently, the judgment against an appellant who
escapes and who refuses to surrender to the proper
authorities becomes final and executory.[40]
Thus far, we have clarified that petitioner has no right to
appeal the criminal case against the accused-employee;
that by jumping bail, he has waived his right to appeal; and
that the judgment in the criminal case against him is now
final.
Subsidiary Liability
Upon Finality of Judgment
As a matter of law, the subsidiary liability of petitioner
now accrues. Petitioner argues that the rulings of this Court
in Miranda v. Malate Garage & Taxicab, Inc.,[41] Alvarez v.
CA[42] andYusay v. Adil[43] do not apply to the present case,
because it has followed the Courts directive to the
employers in these cases to take part in the criminal cases
against their employees. By participating in the defense of
its employee, herein petitioner tries to shield itself from the
undisputed rulings laid down in these leading cases.

Such posturing is untenable. In dissecting these cases

on subsidiary liability, petitioner lost track of the most basic
tenet they have laid down -- that an employers liability in a
finding of guilt against its accused-employee is subsidiary.
Under Article 103 of the Revised Penal Code, employers
are subsidiarily liable for the adjudicated civil liabilities of
their employees in the event of the latters
insolvency.[44] The provisions of the Revised Penal Code on
subsidiary liability -- Articles 102 and 103 -- are deemed
written into the judgments in the cases to which they are
applicable.[45] Thus, in the dispositive portion of its decision,
the trial court need not expressly pronounce the subsidiary
liability of the employer.
In the absence of any collusion between the accusedemployee and the offended party, the judgment of
conviction should bind the person who is subsidiarily
liable.[46] In effect and implication, the stigma of a criminal
conviction surpasses mere civil liability.[47]
To allow employers to dispute the civil liability fixed in a
criminal case would enable them to amend, nullify or defeat
a final judgment rendered by a competent court.[48] By the
same token, to allow them to appeal the final criminal
conviction of their employees without the latters consent
would also result in improperly amending, nullifying or
defeating the judgment.
The decision convicting an employee in a criminal case
is binding and conclusive upon the employer not only with
regard to the formers civil liability, but also with regard to

its amount. The liability of an employer cannot be separated

from that of the employee.[49]
Before the employers subsidiary liability is exacted,
however, there must be adequate evidence establishing
that (1) they are indeed the employers of the convicted
employees; (2) that the former are engaged in some kind of
industry; (3) that the crime was committed by the
employees in the discharge of their duties; and (4) that the
execution against the latter has not been satisfied due to
insolvency.[50]
The resolution of these issues need not be done in a
separate civil action. But the determination must be based
on the evidence that the offended party and the employer
may fully and freely present. Such determination may be
done in the same criminal action in which the employees
liability, criminal and civil, has been pronounced;[51] and in
a hearing set for that precise purpose, with due notice to the
employer, as part of the proceedings for the execution of
the judgment.
Just because the present petitioner participated in the
defense of its accused-employee does not mean that its
liability has transformed its nature; its liability remains
subsidiary. Neither will its participation erase its subsidiary
liability.
The fact remains that since the accusedemployees conviction has attained finality, then the
subsidiary liability of the employer ipso factoattaches.
According to the argument of petitioner, fairness dictates
that while the finality of conviction could be the proper
sanction to be imposed upon the accused for jumping bail,

the same sanction should not affect it. In effect, petitioneremployer splits this case into two: first, for itself;
and second, for its accused-employee.
The untenability of this argument is clearly
evident. There is only one criminal case against the
accused-employee. A finding of guilt has both criminal and
civil aspects. It is the height of absurdity for this single case
to be final as to the accused who jumped bail, but not as to
an entity whose liability is dependent upon the conviction of
the former.
The subsidiary liability of petitioner is incidental to and
dependent on the pecuniary civil liability of the accusedemployee. Since the civil liability of the latter has become
final and enforceable by reason of his flight, then the
formers subsidiary civil liability has also become
immediately enforceable. Respondent is correct in arguing
that the concept of subsidiary liability is highly contingent on
the imposition of the primary civil liability.
No Deprivation
of Due Process
As to the argument that petitioner was deprived of due
process, we reiterate that what is sought to be enforced is
the subsidiary civil liability incident to and dependent upon
the employees criminal negligence. In other words, the
employer becomes ipso facto subsidiarily liable upon the
conviction of the employee and upon proof of the latters
insolvency, in the same way that acquittal wipes out not only

his primary civil liability, but also his employers subsidiary

liability for his criminal negligence.[52]
It should be stressed that the right to appeal is neither a
natural right nor a part of due process.[53] It is merely a
procedural remedy of statutory origin, a remedy that may
be exercised only in the manner prescribed by the
provisions of law authorizing such exercise.[54] Hence, the
legal requirements must be strictly complied with.[55]
It would be incorrect to consider the requirements of the
rules on appeal as merely harmless and trivial technicalities
that can be discarded.[56] Indeed, deviations from the rules
cannot be tolerated.[57] In these times when court dockets
are clogged with numerous litigations, such rules have to
be followed by parties with greater fidelity, so as to facilitate
the orderly disposition of those cases.[58]
After a judgment has become final, vested rights are
acquired by the winning party. If the proper losing party has
the right to file an appeal within the prescribed period, then
the former has the correlative right to enjoy the finality of the
resolution of the case.[59]
In fact, petitioner admits that by helping the accusedemployee, it participated in the proceedings before the
RTC; thus, it cannot be said that the employer was deprived
of due process. It might have lost its right to appeal, but it
was not denied its day in court.[60] In fact, it can be said that
by jumping bail, the accused-employee, not the court,
deprived petitioner of the right to appeal.
All told, what is left to be done is to execute the RTC
Decision against the accused. It should be clear that only

after proof of his insolvency may the subsidiary liability of

petitioner be enforced. It has been sufficiently proven that
there exists an employer-employee relationship; that the
employer is engaged in some kind of industry; and that the
employee has been adjudged guilty of the wrongful act and
found to have committed the offense in the discharge of his
duties. The proof is clear from the admissions of petitioner
that [o]n 26 August 1990,while on its regular trip from
Laoag to Manila, a passenger bus owned by
petitioner, being then operated by petitioners driver,
Napoleon Roman, figured in an accident in San Juan, La
Union x x x.[61] Neither does petitioner dispute that there
was already a finding of guilt against the accused while he
was in the discharge of his duties.
WHEREFORE, the Petition is hereby DENIED, and the
assailed Resolutions AFFIRMED. Costs against petitioner.
SO ORDERED.
Davide, Jr., C.J., (Chairman),
Carpio, and Azcuna, JJ., concur.

Ynares-Santiago,

G.R. No. 74041

July 29, 1987

THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

vs.
ROGELIO LIGON y TRIAS and FERNANDO GABAT y
ALMERA, accused,
FERNANDO GABAT y ALMERA, accused-appellant.
YAP, J.:
This is an appeal from the judgment of the Regional Trial
Court of Manila, Branch XX, rendered on February 17,
1986, convicting the accused-appellant, Fernando Gabat,
of the crime of Robbery with Homicide and sentencing him
to reclusion perpetua. The victim was Jose Rosales y
Ortiz, a ,Seventeen-year old working student who was
earning his keep as a cigarette vendor. He was allegedly
robbed of Es cigarette box containing cigarettes worth
P300.00 more or less.1
Only Fernando Gabat was arrested and brought to trial
and convicted. The other accused, Rogelio Ligon, was
never apprehended and is still at large.
The fatal incident happened on a Sunday, October 23,
1983 at about 6:10 p.m. The accused, Fernando Gabat,
was riding in a 1978 Volkswagen Kombi owned by his
father, Antonio Gabat, and driven by the other accused,
Rogelio Ligon. The Kombi was coming from Espana Street
going towards the direction of Quiapo. Fernando Gabat
was seated beside the driver, in the front seat by the
window on the right side of the Kombi. At the intersection

of Quezon Boulevard and Lerma Street before turning left

towards the underpass at C.M. Recto Avenue, the Kombi
had to stop as the traffic light was red. While waiting for
the traffic light to change, Fernando Gabat beckoned a
cigarette vendor, Jose Rosales y Ortiz (Rosales for short)
to buy some cigarettes from him. Rosales approached the
Kombi and handed Gabat two sticks of cigarettes. While
this transaction was occurring, the traffic light changed to
green, and the Kombi driven by Rogelio Ligon suddenly
moved forward. As to what precisely happened between
Gabat and Rosales at the crucial moment, and
immediately thereafter, is the subject of conflicting
versions by the prosecution and the defense. It is not
controverted, however, that as the Kombi continued to
speed towards Quiapo, Rosales clung to the window of
the Kombi but apparently lost his grip and fell down on the
pavement. Rosales was rushed by some bystanders to the
Philippine General Hospital, where he was treated for
multiple physical injuries and was confined thereat until his
death on October 30, 1983.
Following close behind the Kombi at the time of the
incident was a taxicab driven by Prudencio Castillo. He
was behind the Kombi, at a distance of about three
meters, travelling on the same lane in a slightly oblique
position ("a little bit to the right").2 As the Kombi did not
stop after the victim fell down on the pavement near the
foot of the underpass, Castillo pursued it as it sped
towards Roxas Boulevard, beeping his horn to make the
driver stop. When they reached the Luneta near the Rizal
monument, Castillo saw an owner-type jeep with two

persons in it. He sought their assistance in chasing the

Kombi, telling them "nakaaksidente ng tao."3 The two men
in the jeep joined the chase and at the intersection of Vito
Cruz and Roxas Boulevard, Castillo was able to overtake
the Kombi when the traffic light turned red. He immediately
blocked the Kombi while the jeep pulled up right behind it.
The two men on board the jeep turned out to be police
officers, Patrolmen Leonardo Pugao and Peter Ignacio.
They drew their guns and told the driver, Rogelio Ligon,
and his companion, Fernando Gabat, to alight from the
Kombi. It was found out that there was a third person
inside the Kombi, a certain Rodolfo Primicias who was
sleeping at the rear seat.4 The three were all brought by
the police officers to the Western Police District and turned
over to Pfc. Fernan Payuan. The taxicab driver, Prudencio
Castillo, also went along with them. The written
statements of Castillo and Rodolfo Primicias were taken
by the traffic investigator, Pfc. Fernan Payuan.5 Payuan
also prepared a Traffic Accident Report, dated October 23,
1983.6 Fernando Gabat and Rodolfo Primicias were
released early morning the following day, but Rogelio
Ligon was detained and turned over to the City Fiscal's
Office for further investigation.
Investigating Fiscal Alfredo Cantos, filed an information in
court against Rogelio Ligon dated December 6, 1983
charging him with Homicide thru Reckless
Imprudence.7 Six months later, however, or on June 28,
1984, Assistant Fiscal Cantos filed another information
against Rogelio Ligon and Fernando Gabat for Robbery
with Homicide.8He filed the latter information on the basis

of a Supplemental Affidavit of Prudencio Castillo9 and a

joint affidavit of Armando Espino and Romeo Castil,
cigarette vendors, who allegedly witnessed the incident on
October 23, 1983.10 These affidavits were already
prepared and merely sworn to before Fiscal Cantos on
January 17, 1984.
On October 31, 1983, an autopsy was conducted by the
medico-legal officer of the National Bureau of
Investigation, Dr. Orlando V. Salvador, who stated in his
autopsy report that the cause of death of Rosales was
"pneumonia hypostatic, bilateral, secondary to traumatic
injuries of the head."11
The prosecution tried to establish, through the sole
testimony of the taxicab driver, Prudencio Castillo, that
Gabat grabbed the box of cigarettes from Rosales and
pried loose the latter's hand from the window of the Kombi,
resulting in the latter falling down and hitting the
pavement. In its decision, the trial court summarized the
testimony of Castillo as follows: At about 6:00 o'clock in
the evening of October 23, 1983, Castillo was then driving
his taxicab along Lerma Street near Far Eastern
University, and at the intersection of Lerma and Quezon
Boulevard, the traffic light changed from green to red. The
vehicular traffic stopped and Prudencio Castillo's taxi was
right behind a Volkswagen Kombi. While waiting for the
traffic light to change to green, Castillo Idly watched the
Volkswagen Kombi and saw Gabat, the passenger sitting
beside the driver, signal to a cigarette vendor. The
cigarette vendor, Rosales, approached the right side of the

Kombi. While Rosales was handing the cigarettes to

Gabat, the traffic light suddenly changed to green. When
the Kombi moved forward, Gabat suddenly grabbed the
cigarette box held by Rosales. Taken aback, Jose Rosales
ran beside the Kombi and was able to hold on to the
windowsill of the right front door with his right hand. While
Rosales was clinging to the windowsill, with both feet off
the ground, the Kombi continued to speed towards the
C.M. Recto underpass. Castillo, who was closely following
the Kombi, then saw Gabat forcibly remove the hand of
Rosales from the windowsill and the latter fell face down
on Quezon Boulevard near the Recto underpass.12
The version of the defense, on the other hand, was
summarized by the court as follows: On the date and time
in question, Fernando Gabat, 31 years old, an underwriter,
was on board the Volkswagen Kombi driven by Rogelio
Ligon. The Kombi had to stop at the intersection of Lerma
Street and Quezon Boulevard when the traffic light turned
red. Fernando Gabat, who wanted to buy cigarettes, called
a cigarette vendor who approached the right side of the
Kombi. Gabat bought two sticks of cigarettes and handed
to the cigarette vendor, Rosales, a P5.00 bill. In order to
change the P5.00 big, Rosales placed his cigarette box
containing assorted cigarettes on the windowsill of the
front door of the Kombi between the arm of Gabat and the
window frame. Suddenly, the traffic light changed from red
to green and Rogelio Ligon moved the vehicle forward,
heedless of the transaction between Gabat and the
cigarette vendor. As the vehicle sped onward, the
cigarette box which was squeezed between the right arm

of Gabat and the window frame fell inside the Kombi.

Rosales then ran beside the vehicle and clung to the
windowsill of the moving vehicle. Gabat testified that when
he saw the cigarette vendor clinging on the side of the
front door, he told Ligon to veer to the right in order that
Rosales could get off at the sidewalk. However, Gabat
declared, that Ligon said that it could not be done because
of the moving vehicular traffic. Then, while the vehicle
slowed down and Ligon was maneuvering to the right in
an attempt to go toward the sidewalk, Rosales lost his grip
on the window frame and fell to the pavement of Quezon
Boulevard. Gabat allegedly shouted at Ligon to stop but
Ligon replied that they should go on to Las Pinas and
report the incident to the parents of Gabat, and later they
would come back to the scene of the incident. However,
while the Kombi was speeding along Dewey Boulevard, it
was blocked by the taxi of Prudencio Castillo and a jeep
driven by policemen. Gabat and Ligon were brought to
police headquarters, but neither of them executed any
written statement.13
The trial court gave full credence to the prosecution's
version, stating that there can be no doubt that Gabat
forcibly took or grabbed the cigarette box from Rosales
because, otherwise, there could be no reason for the latter
to run after the Kombi and hang on to its window. The
court also believed Castillo's testimony that Gabat forcibly
removed or pried off the right hand of Rosales from the
windowsill of the Kombi, otherwise, the latter could not
have fallen down, having already been able to balance
himself on the stepboard.

On the other hand, the trial court dismissed as incredible

the testimony of Gabat that the cigarette vendor placed
the cigarette box on the windowsill of the Kombi, holding it
with his left hand, while he was trying to get from his
pocket the change for the 5-peso bill of Gabat. The court
said that it is of common knowledge that cigarette vendors
plying their trade in the streets do not let go of their
cigarette box; no vendor lets go of his precious box of
cigarettes in order to change a peso bin given by a
customer.
As a rule, the findings of fact of the trial court are accorded
great respect and are not disturbed on appeal, unless it is
shows that the findings are not supported by the evidence,
or the court failed to consider certain material facts and
circumstances in its evaluation of the evidence. In the
case at bar, a careful review of the record shows that
certain material facts and circumstances had been
overlooked by the trial court which, if taken into account,
would alter the result of the case in that they would
introduce an element of reasonable doubt which would
entitle the accused to acquittal.
While the prosecution witness, Castillo, may be a
disinterested witness with no motive, according to the
court a quo, "other than to see that justice be done," his
testimony, even if not tainted with bias, is not entirely free
from doubt because his observation of the event could
have been faulty or mistaken. The taxicab which Castillo
was driving was lower in height compared to the Kombi in
which Gabat was riding-a fact admitted by Castillo at the

trial.14 Judicial notice may also be taken of the fact that the
rear windshield of the 1978 Volkswagen Kombi is on the
upper portion, occupying approximately one-third (1/3) of
the rear end of the vehicle, thus making it visually difficult
for Castillo to observe clearly what transpired inside the
Kombi at the front end where Gabat was seated. These
are circumstances which must be taken into consideration
in evaluating Castillo's testimony as to what exactly
happened between Gabat and the cigarette vendor during
that crucial moment before the latter fell down. As the
taxicab was right behind the Kombi, following it at a
distance of about three meters, Castillo's line of vision was
partially obstructed by the back part of the Kombi. His
testimony that he saw Gabat grab the cigarette box from
Rosales and forcibly pry loose the latter's hand from the
windowsill of the Kombi is thus subject to a reasonable
doubt, specially considering that this occurrence
happened in just a matter of seconds, and both vehicles
during that time were moving fast in the traffic.
We find it significant that in his statement given to the
police that very evening,15 Castillo did not mention that he
saw Gabat forcibly prying off the hand of Rosales from the
windowsill of the Kombi, although the police report
prepared by the investigating officer, Pfc. Fermin M.
Payuan, on the same date, stated that when the traffic
signal changed to green and the driver stepped on the
gas, the cigarette box of the cigarette vendor (Rosales)
was grabbed by the passenger Gabat and "instantly the
former clung to the door and was dragged at a distance
while at the same time the latter punched the vendor's arm

until the same (sic) fell to the pavement," thus showing

that during the police investigation Castillo must have
given a statement to the police which indicated that Gabat
did something to cause Rosales to fall from the Kombi.16 It
was by way of a supplementary affidavit prepared by the
lawyer of the complainant and sworn to by Castillo before
the Assistant City Fiscal on January 17, 1984 that this vital
detail was added. This supplementary affidavit was made
the basis for filing another information charging both
Gabat and the driver with the crime of Robbery with
Homicide.
Considering the above circumstances, the Court is not
convinced with moral certainty that the guilt of the accused
Fernando Gabat has been established beyond reasonable
doubt. In our view, the quantum of proof necessary to
sustain Gabat's conviction of so serious a crime as
robbery with homicide has not been met in this case. He is
therefore entitled to acquittal on reasonable doubt.
However, it does not follow that a person who is not
criminally liable is also free from civil
liability.1avvphi1 While the guilt of the accused in a
criminal prosecution must be established beyond
reasonable doubt, only a preponderance of evidence is
required in a civil action for damages.17 The judgment of
acquittal extinguishes the civil liability of the accused only
when it includes a declaration that the facts from which the
civil liability might arise did not exist.18
The reason for the provisions of Article 29 of the Civil
Code, which provides that the acquittal of the accused on

the ground that his guilt has not been proved beyond
reasonable doubt does not necessarily exempt him from
civil liability for the same act or omission, has been
explained by the Code Commission as follows:
The old rule that the acquittal of the accused in a
criminal case also releases him from civil liability is
one of the most serious flaws in the Philippine legal
system. It has given rise to numberless instances of
miscarriage of justice, where the acquittal was due to
a reasonable doubt in the mind of the court as to the
guilt of the accused. The reasoning followed is that
inasmuch as the civil responsibility is derived from the
criminal offense, when the latter is not proved, civil
liability cannot be demanded.
This is one of those cases where confused thinking
leads to unfortunate and deplorable consequences.
Such reasoning fails to draw a clear line of
demarcation between criminal liability and civil
responsibility, and to determine the logical result of
the distinction. The two liabilities are separate and
distinct from each other. One affects the social order
and the other, private rights. One is for the
punishment or correction of the offender while the
other is for reparation of damages suffered by the
aggrieved party. The two responsibilities are so
different from each other that article 1813 of the
present (Spanish) Civil Code reads thus: "There may
be a compromise upon the civil action arising from a
crime; but the public action for the imposition of the

legal penalty shall not thereby be extinguished." It is

just and proper that, for the purposes of the
imprisonment of or fine upon the accused, the offense
should be proved beyond reasonable doubt. But for
the purpose of indemnifying the complaining party,
why should the offense also be proved beyond
reasonable doubt? Is not the invasion or violation of
every private right to be proved only by a
preponderance of evidence? Is the right of the
aggrieved person any less private because the
wrongful act is also punishable by the criminal law?
For these reasons, the Commission recommends the
adoption of the reform under discussion. It will correct
a serious defect in our law. It will close up an
inexhaustible source of injustice a cause for
disillusionment on the part of the innumerable
persons injured or wronged. 19
In the instant case, we find that a preponderance of
evidence exists sufficient to establish the facts from which
the civil liability of Gabat arises. On the basis of the trial
court's evaluation of the testimonies of both prosecution
and defense witnesses at the trial and applying the
quantum of proof required in civil cases, we find that a
preponderance of evidence establishes that Gabat by his
act and omission with fault and negligence caused
damage to Rosales and should answer civilly for the
damage done. Gabat's wilfull act of calling Rosales, the
cigarette vendor, to the middle of a busy street to buy two
sticks of cigarettes set the chain of events which led to the

death of Rosales. Through fault and negligence, Gabat (1)

failed to prevent the driver from moving forward while the
purchase was completed; (2) failed to help Rosales while
the latter clung precariously to the moving vehicle, and (3)
did not enforce his order to the driver to stop. Finally,
Gabat acquiesced in the driver's act of speeding away,
instead of stopping and picking up the injured victim.
These proven facts taken together are firm bases for
finding Gabat civilly liable under the Civil Code20 for the
damage done to Rosales.
WHEREFORE, judgment is rendered acquitting the
appellant Gabat for the crime of Robbery with Homicide.
However, he is hereby held civilly liable for his acts and
omissions, there being fault or negligence, and sentenced
to indemnify the heirs of Jose Rosales y Ortiz in the
amount of P15.000.00 for the latter's death, P1,733.35 for
hospital and medical expenses, and P4,100.00 for funeral
expenses. The alleged loss of income amounting to
P20,000.00, not being supported by sufficient evidence, is
DENIED. Costs de officio.
SO ORDERED.

QUASI DELICT V BREACH OF CONTRACT

G.R. No. L-12191

October 14, 1918

JOSE CANGCO, plaintiff-appellant,

vs.
MANILA RAILROAD CO., defendant-appellee.
Ramon Sotelo for appellant.
Kincaid & Hartigan for appellee.

FISHER, J.:
At the time of the occurrence which gave rise to this
litigation the plaintiff, Jose Cangco, was in the employment
of Manila Railroad Company in the capacity of clerk, with a
monthly wage of P25. He lived in the pueblo of San
Mateo, in the province of Rizal, which is located upon the
line of the defendant railroad company; and in coming
daily by train to the company's office in the city of Manila
where he worked, he used a pass, supplied by the
company, which entitled him to ride upon the company's
trains free of charge. Upon the occasion in question,
January 20, 1915, the plaintiff arose from his seat in the
second class-car where he was riding and, making, his
exit through the door, took his position upon the steps of
the coach, seizing the upright guardrail with his right hand
for support.
On the side of the train where passengers alight at the
San Mateo station there is a cement platform which begins

to rise with a moderate gradient some distance away from

the company's office and extends along in front of said
office for a distance sufficient to cover the length of
several coaches. As the train slowed down another
passenger, named Emilio Zuiga, also an employee of the
railroad company, got off the same car, alighting safely at
the point where the platform begins to rise from the level
of the ground. When the train had proceeded a little farther
the plaintiff Jose Cangco stepped off also, but one or both
of his feet came in contact with a sack of watermelons with
the result that his feet slipped from under him and he fell
violently on the platform. His body at once rolled from the
platform and was drawn under the moving car, where his
right arm was badly crushed and lacerated. It appears that
after the plaintiff alighted from the train the car moved
forward possibly six meters before it came to a full stop.
The accident occurred between 7 and 8 o'clock on a dark
night, and as the railroad station was lighted dimly by a
single light located some distance away, objects on the
platform where the accident occurred were difficult to
discern especially to a person emerging from a lighted car.
The explanation of the presence of a sack of melons on
the platform where the plaintiff alighted is found in the fact
that it was the customary season for harvesting these
melons and a large lot had been brought to the station for
the shipment to the market. They were contained in
numerous sacks which has been piled on the platform in a
row one upon another. The testimony shows that this row
of sacks was so placed of melons and the edge of

platform; and it is clear that the fall of the plaintiff was due
to the fact that his foot alighted upon one of these melons
at the moment he stepped upon the platform. His
statement that he failed to see these objects in the
darkness is readily to be credited.
The plaintiff was drawn from under the car in an
unconscious condition, and it appeared that the injuries
which he had received were very serious. He was
therefore brought at once to a certain hospital in the city of
Manila where an examination was made and his arm was
amputated. The result of this operation was unsatisfactory,
and the plaintiff was then carried to another hospital where
a second operation was performed and the member was
again amputated higher up near the shoulder. It appears
in evidence that the plaintiff expended the sum of P790.25
in the form of medical and surgical fees and for other
expenses in connection with the process of his curation.
Upon August 31, 1915, he instituted this proceeding in the
Court of First Instance of the city of Manila to recover
damages of the defendant company, founding his action
upon the negligence of the servants and employees of the
defendant in placing the sacks of melons upon the
platform and leaving them so placed as to be a menace to
the security of passenger alighting from the company's
trains. At the hearing in the Court of First Instance, his
Honor, the trial judge, found the facts substantially as
above stated, and drew therefrom his conclusion to the
effect that, although negligence was attributable to the
defendant by reason of the fact that the sacks of melons

were so placed as to obstruct passengers passing to and

from the cars, nevertheless, the plaintiff himself had failed
to use due caution in alighting from the coach and was
therefore precluded form recovering. Judgment was
accordingly entered in favor of the defendant company,
and the plaintiff appealed.
It can not be doubted that the employees of the railroad
company were guilty of negligence in piling these sacks on
the platform in the manner above stated; that their
presence caused the plaintiff to fall as he alighted from the
train; and that they therefore constituted an effective legal
cause of the injuries sustained by the plaintiff. It
necessarily follows that the defendant company is liable
for the damage thereby occasioned unless recovery is
barred by the plaintiff's own contributory negligence. In
resolving this problem it is necessary that each of these
conceptions of liability, to-wit, the primary responsibility of
the defendant company and the contributory negligence of
the plaintiff should be separately examined.
It is important to note that the foundation of the legal
liability of the defendant is the contract of carriage, and
that the obligation to respond for the damage which
plaintiff has suffered arises, if at all, from the breach of that
contract by reason of the failure of defendant to exercise
due care in its performance. That is to say, its liability is
direct and immediate, differing essentially, in legal
viewpoint from that presumptive responsibility for the
negligence of its servants, imposed by article 1903 of the
Civil Code, which can be rebutted by proof of the exercise

of due care in their selection and supervision. Article 1903

of the Civil Code is not applicable to obligations arising ex
contractu, but only to extra-contractual obligations or to
use the technical form of expression, that article relates
only to culpa aquiliana and not to culpa contractual.
Manresa (vol. 8, p. 67) in his commentaries upon articles
1103 and 1104 of the Civil Code, clearly points out this
distinction, which was also recognized by this Court in its
decision in the case of Rakes vs. Atlantic, Gulf and Pacific
Co. (7 Phil. rep., 359). In commenting upon article 1093
Manresa clearly points out the difference between "culpa,
substantive and independent, which of itself constitutes
the source of an obligation between persons not formerly
connected by any legal tie" and culpa considered as an
accident in the performance of an obligation already
existing . . . ."
In the Rakes case (supra) the decision of this court was
made to rest squarely upon the proposition that article
1903 of the Civil Code is not applicable to acts of
negligence which constitute the breach of a contract.
Upon this point the Court said:
The acts to which these articles [1902 and 1903 of the
Civil Code] are applicable are understood to be those
not growing out of pre-existing duties of the parties to
one another. But where relations already formed give
rise to duties, whether springing from contract or
quasi-contract, then breaches of those duties are
subject to article 1101, 1103, and 1104 of the same

code. (Rakes vs. Atlantic, Gulf and Pacific Co., 7 Phil.

Rep., 359 at 365.)
This distinction is of the utmost importance. The liability,
which, under the Spanish law, is, in certain cases imposed
upon employers with respect to damages occasioned by
the negligence of their employees to persons to whom
they are not bound by contract, is not based, as in the
English Common Law, upon the principle ofrespondeat
superior if it were, the master would be liable in every
case and unconditionally but upon the principle
announced in article 1902 of the Civil Code, which
imposes upon all persons who by their fault or negligence,
do injury to another, the obligation of making good the
damage caused. One who places a powerful automobile in
the hands of a servant whom he knows to be ignorant of
the method of managing such a vehicle, is himself guilty of
an act of negligence which makes him liable for all the
consequences of his imprudence. The obligation to make
good the damage arises at the very instant that the
unskillful servant, while acting within the scope of his
employment causes the injury. The liability of the master is
personal and direct. But, if the master has not been guilty
of any negligence whatever in the selection and direction
of the servant, he is not liable for the acts of the latter,
whatever done within the scope of his employment or not,
if the damage done by the servant does not amount to a
breach of the contract between the master and the person
injured.

It is not accurate to say that proof of diligence and care in

the selection and control of the servant relieves the master
from liability for the latter's acts on the contrary, that
proof shows that the responsibility has never existed. As
Manresa says (vol. 8, p. 68) the liability arising from extracontractual culpa is always based upon a voluntary act or
omission which, without willful intent, but by mere
negligence or inattention, has caused damage to another.
A master who exercises all possible care in the selection
of his servant, taking into consideration the qualifications
they should possess for the discharge of the duties which
it is his purpose to confide to them, and directs them with
equal diligence, thereby performs his duty to third persons
to whom he is bound by no contractual ties, and he incurs
no liability whatever if, by reason of the negligence of his
servants, even within the scope of their employment, such
third person suffer damage. True it is that under article
1903 of the Civil Code the law creates a presumption that
he has been negligent in the selection or direction of his
servant, but the presumption is rebuttable and yield to
proof of due care and diligence in this respect.
The supreme court of Porto Rico, in interpreting identical
provisions, as found in the Porto Rico Code, has held that
these articles are applicable to cases of extracontractual culpa exclusively. (Carmona vs. Cuesta, 20
Porto Rico Reports, 215.)
This distinction was again made patent by this Court in its
decision in the case of Bahia vs. Litonjua and Leynes, (30
Phil. rep., 624), which was an action brought upon the

theory of the extra-contractual liability of the defendant to

respond for the damage caused by the carelessness of his
employee while acting within the scope of his employment.
The Court, after citing the last paragraph of article 1903 of
the Civil Code, said:
From this article two things are apparent: (1) That
when an injury is caused by the negligence of a
servant or employee there instantly arises a
presumption of law that there was negligence on the
part of the master or employer either in selection of
the servant or employee, or in supervision over him
after the selection, or both; and (2) that that
presumption is juris tantum and not juris et de jure,
and consequently, may be rebutted. It follows
necessarily that if the employer shows to the
satisfaction of the court that in selection and
supervision he has exercised the care and diligence
of a good father of a family, the presumption is
overcome and he is relieved from liability.
This theory bases the responsibility of the master
ultimately on his own negligence and not on that of
his servant. This is the notable peculiarity of the
Spanish law of negligence. It is, of course, in striking
contrast to the American doctrine that, in relations
with strangers, the negligence of the servant in
conclusively the negligence of the master.
The opinion there expressed by this Court, to the effect
that in case of extra-contractual culpa based upon
negligence, it is necessary that there shall have been

some fault attributable to the defendant personally, and

that the last paragraph of article 1903 merely establishes a
rebuttable presumption, is in complete accord with the
authoritative opinion of Manresa, who says (vol. 12, p.
611) that the liability created by article 1903 is imposed by
reason of the breach of the duties inherent in the special
relations of authority or superiority existing between the
person called upon to repair the damage and the one who,
by his act or omission, was the cause of it.
On the other hand, the liability of masters and employers
for the negligent acts or omissions of their servants or
agents, when such acts or omissions cause damages
which amount to the breach of a contact, is not based
upon a mere presumption of the master's negligence in
their selection or control, and proof of exercise of the
utmost diligence and care in this regard does not relieve
the master of his liability for the breach of his contract.
Every legal obligation must of necessity be extracontractual or contractual. Extra-contractual obligation has
its source in the breach or omission of those mutual duties
which civilized society imposes upon it members, or which
arise from these relations, other than contractual, of
certain members of society to others, generally embraced
in the concept of status. The legal rights of each member
of society constitute the measure of the corresponding
legal duties, mainly negative in character, which the
existence of those rights imposes upon all other members
of society. The breach of these general duties whether
due to willful intent or to mere inattention, if productive of

injury, give rise to an obligation to indemnify the injured

party. The fundamental distinction between obligations of
this character and those which arise from contract, rests
upon the fact that in cases of non-contractual obligation it
is the wrongful or negligent act or omission itself which
creates the vinculum juris, whereas in contractual relations
the vinculum exists independently of the breach of the
voluntary duty assumed by the parties when entering into
the contractual relation.
With respect to extra-contractual obligation arising from
negligence, whether of act or omission, it is competent for
the legislature to elect and our Legislature has so
elected whom such an obligation is imposed is morally
culpable, or, on the contrary, for reasons of public policy,
to extend that liability, without regard to the lack of moral
culpability, so as to include responsibility for the
negligence of those person who acts or mission are
imputable, by a legal fiction, to others who are in a position
to exercise an absolute or limited control over them. The
legislature which adopted our Civil Code has elected to
limit extra-contractual liability with certain well-defined
exceptions to cases in which moral culpability can be
directly imputed to the persons to be charged. This moral
responsibility may consist in having failed to exercise due
care in the selection and control of one's agents or
servants, or in the control of persons who, by reason of
their status, occupy a position of dependency with respect
to the person made liable for their conduct.

The position of a natural or juridical person who has

undertaken by contract to render service to another, is
wholly different from that to which article 1903 relates.
When the sources of the obligation upon which plaintiff's
cause of action depends is a negligent act or omission, the
burden of proof rests upon plaintiff to prove the negligence
if he does not his action fails. But when the facts
averred show a contractual undertaking by defendant for
the benefit of plaintiff, and it is alleged that plaintiff has
failed or refused to perform the contract, it is not
necessary for plaintiff to specify in his pleadings whether
the breach of the contract is due to willful fault or to
negligence on the part of the defendant, or of his servants
or agents. Proof of the contract and of its nonperformance
is sufficientprima facie to warrant a recovery.
As a general rule . . . it is logical that in case of extracontractual culpa, a suing creditor should assume the
burden of proof of its existence, as the only fact upon
which his action is based; while on the contrary, in a
case of negligence which presupposes the existence
of a contractual obligation, if the creditor shows that it
exists and that it has been broken, it is not necessary
for him to prove negligence. (Manresa, vol. 8, p. 71
[1907 ed., p. 76]).
As it is not necessary for the plaintiff in an action for the
breach of a contract to show that the breach was due to
the negligent conduct of defendant or of his servants, even
though such be in fact the actual cause of the breach, it is
obvious that proof on the part of defendant that the

negligence or omission of his servants or agents caused

the breach of the contract would not constitute a defense
to the action. If the negligence of servants or agents could
be invoked as a means of discharging the liability arising
from contract, the anomalous result would be that person
acting through the medium of agents or servants in the
performance of their contracts, would be in a better
position than those acting in person. If one delivers a
valuable watch to watchmaker who contract to repair it,
and the bailee, by a personal negligent act causes its
destruction, he is unquestionably liable. Would it be logical
to free him from his liability for the breach of his contract,
which involves the duty to exercise due care in the
preservation of the watch, if he shows that it was his
servant whose negligence caused the injury? If such a
theory could be accepted, juridical persons would enjoy
practically complete immunity from damages arising from
the breach of their contracts if caused by negligent acts as
such juridical persons can of necessity only act through
agents or servants, and it would no doubt be true in most
instances that reasonable care had been taken in
selection and direction of such servants. If one delivers
securities to a banking corporation as collateral, and they
are lost by reason of the negligence of some clerk
employed by the bank, would it be just and reasonable to
permit the bank to relieve itself of liability for the breach of
its contract to return the collateral upon the payment of the
debt by proving that due care had been exercised in the
selection and direction of the clerk?

This distinction between culpa aquiliana, as the source of

an obligation, and culpa contractual as a mere incident to
the performance of a contract has frequently been
recognized by the supreme court of Spain. (Sentencias of
June 27, 1894; November 20, 1896; and December 13,
1896.) In the decisions of November 20, 1896, it appeared
that plaintiff's action arose ex contractu, but that defendant
sought to avail himself of the provisions of article 1902 of
the Civil Code as a defense. The Spanish Supreme Court
rejected defendant's contention, saying:
These are not cases of injury caused, without any
pre-existing obligation, by fault or negligence, such as
those to which article 1902 of the Civil Code relates,
but of damages caused by the defendant's failure to
carry out the undertakings imposed by the contracts .
...
A brief review of the earlier decision of this court involving
the liability of employers for damage done by the negligent
acts of their servants will show that in no case has the
court ever decided that the negligence of the defendant's
servants has been held to constitute a defense to an
action for damages for breach of contract.
In the case of Johnson vs. David (5 Phil. Rep., 663), the
court held that the owner of a carriage was not liable for
the damages caused by the negligence of his driver. In
that case the court commented on the fact that no
evidence had been adduced in the trial court that the
defendant had been negligent in the employment of the

driver, or that he had any knowledge of his lack of skill or

carefulness.
In the case of Baer Senior & Co's
Successors vs. Compania Maritima (6 Phil. Rep., 215), the
plaintiff sued the defendant for damages caused by the
loss of a barge belonging to plaintiff which was allowed to
get adrift by the negligence of defendant's servants in the
course of the performance of a contract of towage. The
court held, citing Manresa (vol. 8, pp. 29, 69) that if the
"obligation of the defendant grew out of a contract made
between it and the plaintiff . . . we do not think that the
provisions of articles 1902 and 1903 are applicable to the
case."
In the case of Chapman vs. Underwood (27 Phil. Rep.,
374), plaintiff sued the defendant to recover damages for
the personal injuries caused by the negligence of
defendant's chauffeur while driving defendant's automobile
in which defendant was riding at the time. The court found
that the damages were caused by the negligence of the
driver of the automobile, but held that the master was not
liable, although he was present at the time, saying:
. . . unless the negligent acts of the driver are
continued for a length of time as to give the owner a
reasonable opportunity to observe them and to direct
the driver to desist therefrom. . . . The act complained
of must be continued in the presence of the owner for
such length of time that the owner by his
acquiescence, makes the driver's acts his own.

In the case of Yamada vs. Manila Railroad Co. and

Bachrach Garage & Taxicab Co. (33 Phil. Rep., 8), it is
true that the court rested its conclusion as to the liability of
the defendant upon article 1903, although the facts
disclosed that the injury complaint of by plaintiff
constituted a breach of the duty to him arising out of the
contract of transportation. The express ground of the
decision in this case was that article 1903, in dealing with
the liability of a master for the negligent acts of his
servants "makes the distinction between private
individuals and public enterprise;" that as to the latter the
law creates a rebuttable presumption of negligence in the
selection or direction of servants; and that in the particular
case the presumption of negligence had not been
overcome.
It is evident, therefore that in its decision Yamada case,
the court treated plaintiff's action as though founded in tort
rather than as based upon the breach of the contract of
carriage, and an examination of the pleadings and of the
briefs shows that the questions of law were in fact
discussed upon this theory. Viewed from the standpoint of
the defendant the practical result must have been the
same in any event. The proof disclosed beyond doubt that
the defendant's servant was grossly negligent and that his
negligence was the proximate cause of plaintiff's injury. It
also affirmatively appeared that defendant had been guilty
of negligence in its failure to exercise proper discretion in
the direction of the servant. Defendant was, therefore,
liable for the injury suffered by plaintiff, whether the breach
of the duty were to be regarded as constituting culpa

aquiliana or culpa contractual. As Manresa points out (vol.

8, pp. 29 and 69) whether negligence occurs an incident in
the course of the performance of a contractual undertaking
or its itself the source of an extra-contractual undertaking
obligation, its essential characteristics are identical. There
is always an act or omission productive of damage due to
carelessness or inattention on the part of the defendant.
Consequently, when the court holds that a defendant is
liable in damages for having failed to exercise due care,
either directly, or in failing to exercise proper care in the
selection and direction of his servants, the practical result
is identical in either case. Therefore, it follows that it is not
to be inferred, because the court held in the Yamada case
that defendant was liable for the damages negligently
caused by its servants to a person to whom it was bound
by contract, and made reference to the fact that the
defendant was negligent in the selection and control of its
servants, that in such a case the court would have held
that it would have been a good defense to the action, if
presented squarely upon the theory of the breach of the
contract, for defendant to have proved that it did in fact
exercise care in the selection and control of the servant.
The true explanation of such cases is to be found by
directing the attention to the relative spheres of contractual
and extra-contractual obligations. The field of noncontractual obligation is much more broader than that of
contractual obligations, comprising, as it does, the whole
extent of juridical human relations. These two fields,
figuratively speaking, concentric; that is to say, the mere
fact that a person is bound to another by contract does not

relieve him from extra-contractual liability to such person.

When such a contractual relation exists the obligor may
break the contract under such conditions that the same act
which constitutes the source of an extra-contractual
obligation had no contract existed between the parties.
The contract of defendant to transport plaintiff carried with
it, by implication, the duty to carry him in safety and to
provide safe means of entering and leaving its trains (civil
code, article 1258). That duty, being contractual, was
direct and immediate, and its non-performance could not
be excused by proof that the fault was morally imputable
to defendant's servants.
The railroad company's defense involves the assumption
that even granting that the negligent conduct of its
servants in placing an obstruction upon the platform was a
breach of its contractual obligation to maintain safe means
of approaching and leaving its trains, the direct and
proximate cause of the injury suffered by plaintiff was his
own contributory negligence in failing to wait until the train
had come to a complete stop before alighting. Under the
doctrine of comparative negligence announced in the
Rakes case (supra), if the accident was caused by
plaintiff's own negligence, no liability is imposed upon
defendant's negligence and plaintiff's negligence merely
contributed to his injury, the damages should be
apportioned. It is, therefore, important to ascertain if
defendant was in fact guilty of negligence.
It may be admitted that had plaintiff waited until the train
had come to a full stop before alighting, the particular

injury suffered by him could not have occurred. Defendant

contends, and cites many authorities in support of the
contention, that it is negligence per se for a passenger to
alight from a moving train. We are not disposed to
subscribe to this doctrine in its absolute form. We are of
the opinion that this proposition is too badly stated and is
at variance with the experience of every-day life. In this
particular instance, that the train was barely moving when
plaintiff alighted is shown conclusively by the fact that it
came to stop within six meters from the place where he
stepped from it. Thousands of person alight from trains
under these conditions every day of the year, and sustain
no injury where the company has kept its platform free
from dangerous obstructions. There is no reason to
believe that plaintiff would have suffered any injury
whatever in alighting as he did had it not been for
defendant's negligent failure to perform its duty to provide
a safe alighting place.
We are of the opinion that the correct doctrine relating to
this subject is that expressed in Thompson's work on
Negligence (vol. 3, sec. 3010) as follows:
The test by which to determine whether the
passenger has been guilty of negligence in attempting
to alight from a moving railway train, is that of ordinary
or reasonable care. It is to be considered whether an
ordinarily prudent person, of the age, sex and
condition of the passenger, would have acted as the
passenger acted under the circumstances disclosed
by the evidence. This care has been defined to be,

not the care which may or should be used by the

prudent man generally, but the care which a man of
ordinary prudence would use under similar
circumstances, to avoid injury." (Thompson,
Commentaries on Negligence, vol. 3, sec. 3010.)
Or, it we prefer to adopt the mode of exposition used by
this court in Picart vs. Smith (37 Phil. rep., 809), we may
say that the test is this; Was there anything in the
circumstances surrounding the plaintiff at the time he
alighted from the train which would have admonished a
person of average prudence that to get off the train under
the conditions then existing was dangerous? If so, the
plaintiff should have desisted from alighting; and his failure
so to desist was contributory negligence.1awph!l.net
As the case now before us presents itself, the only fact
from which a conclusion can be drawn to the effect that
plaintiff was guilty of contributory negligence is that he
stepped off the car without being able to discern clearly
the condition of the platform and while the train was yet
slowly moving. In considering the situation thus presented,
it should not be overlooked that the plaintiff was, as we
find, ignorant of the fact that the obstruction which was
caused by the sacks of melons piled on the platform
existed; and as the defendant was bound by reason of its
duty as a public carrier to afford to its passengers facilities
for safe egress from its trains, the plaintiff had a right to
assume, in the absence of some circumstance to warn
him to the contrary, that the platform was clear. The place,
as we have already stated, was dark, or dimly lighted, and

this also is proof of a failure upon the part of the defendant

in the performance of a duty owing by it to the plaintiff; for
if it were by any possibility concede that it had right to pile
these sacks in the path of alighting passengers, the
placing of them adequately so that their presence would
be revealed.
As pertinent to the question of contributory negligence on
the part of the plaintiff in this case the following
circumstances are to be noted: The company's platform
was constructed upon a level higher than that of the
roadbed and the surrounding ground. The distance from
the steps of the car to the spot where the alighting
passenger would place his feet on the platform was thus
reduced, thereby decreasing the risk incident to stepping
off. The nature of the platform, constructed as it was of
cement material, also assured to the passenger a stable
and even surface on which to alight. Furthermore, the
plaintiff was possessed of the vigor and agility of young
manhood, and it was by no means so risky for him to get
off while the train was yet moving as the same act would
have been in an aged or feeble person. In determining the
question of contributory negligence in performing such act
that is to say, whether the passenger acted prudently or
recklessly the age, sex, and physical condition of the
passenger are circumstances necessarily affecting the
safety of the passenger, and should be considered.
Women, it has been observed, as a general rule are less
capable than men of alighting with safety under such
conditions, as the nature of their wearing apparel obstructs
the free movement of the limbs. Again, it may be noted

that the place was perfectly familiar to the plaintiff as it

was his daily custom to get on and of the train at this
station. There could, therefore, be no uncertainty in his
mind with regard either to the length of the step which he
was required to take or the character of the platform where
he was alighting. Our conclusion is that the conduct of the
plaintiff in undertaking to alight while the train was yet
slightly under way was not characterized by imprudence
and that therefore he was not guilty of contributory
negligence.
The evidence shows that the plaintiff, at the time of the
accident, was earning P25 a month as a copyist clerk, and
that the injuries he has suffered have permanently
disabled him from continuing that employment. Defendant
has not shown that any other gainful occupation is open to
plaintiff. His expectancy of life, according to the standard
mortality tables, is approximately thirty-three years. We
are of the opinion that a fair compensation for the damage
suffered by him for his permanent disability is the sum of
P2,500, and that he is also entitled to recover of defendant
the additional sum of P790.25 for medical attention,
hospital services, and other incidental expenditures
connected with the treatment of his injuries.
The decision of lower court is reversed, and judgment is
hereby rendered plaintiff for the sum of P3,290.25, and for
the costs of both instances. So ordered.
Arellano, C.J., Torres, Street and Avancea, JJ., concur.

Separate Opinions

MALCOLM, J., dissenting:

With one sentence in the majority decision, we are of full
accord, namely, "It may be admitted that had plaintiff
waited until the train had come to a full stop before
alighting, the particular injury suffered by him could not
have occurred." With the general rule relative to a
passenger's contributory negligence, we are likewise in full
accord, namely, "An attempt to alight from a moving train
is negligence per se." Adding these two points together,
should be absolved from the complaint, and judgment
affirmed.
Johnson, J., concur.

G.R. No. L-21438

September 28, 1966

AIR FRANCE, petitioner,

vs.
RAFAEL CARRASCOSO and the HONORABLE COURT
OF APPEALS, respondents.
Lichauco, Picazo and Agcaoili for petitioner.
Bengzon Villegas and Zarraga for respondent R.
Carrascoso.

SANCHEZ, J.:
The Court of First Instance of Manila 1 sentenced petitioner
to pay respondent Rafael Carrascoso P25,000.00 by way
of moral damages; P10,000.00 as exemplary damages;
P393.20 representing the difference in fare between first
class and tourist class for the portion of the trip BangkokRome, these various amounts with interest at the legal
rate, from the date of the filing of the complaint until paid;
plus P3,000.00 for attorneys' fees; and the costs of suit.
On appeal,2 the Court of Appeals slightly reduced the
amount of refund on Carrascoso's plane ticket from
P393.20 to P383.10, and voted to affirm the appealed
decision "in all other respects", with costs against
petitioner.
The case is now before us for review on certiorari.

The facts declared by the Court of Appeals as " fully

supported by the evidence of record", are:
Plaintiff, a civil engineer, was a member of a group of
48 Filipino pilgrims that left Manila for Lourdes on
March 30, 1958.
On March 28, 1958, the defendant, Air France,
through its authorized agent, Philippine Air Lines, Inc.,
issued to plaintiff a "first class" round trip airplane
ticket from Manila to Rome. From Manila to Bangkok,
plaintiff travelled in "first class", but at Bangkok, the
Manager of the defendant airline forced plaintiff to
vacate the "first class" seat that he was occupying
because, in the words of the witness Ernesto G.
Cuento, there was a "white man", who, the Manager
alleged, had a "better right" to the seat. When asked
to vacate his "first class" seat, the plaintiff, as was to
be expected, refused, and told defendant's Manager
that his seat would be taken over his dead body; a
commotion ensued, and, according to said Ernesto G.
Cuento, "many of the Filipino passengers got nervous
in the tourist class; when they found out that Mr.
Carrascoso was having a hot discussion with the
white man [manager], they came all across to Mr.
Carrascoso and pacified Mr. Carrascoso to give his
seat to the white man" (Transcript, p. 12, Hearing of
May 26, 1959); and plaintiff reluctantly gave his "first
class" seat in the plane.3
1. The trust of the relief petitioner now seeks is that we
review "all the findings" 4 of respondent Court of Appeals.

Petitioner charges that respondent court failed to make

complete findings of fact on all the issues properly laid
before it. We are asked to consider facts favorable to
petitioner, and then, to overturn the appellate court's
decision.
Coming into focus is the constitutional mandate that "No
decision shall be rendered by any court of record without
expressing therein clearly and distinctly the facts and the
law on which it is based". 5 This is echoed in the statutory
demand that a judgment determining the merits of the
case shall state "clearly and distinctly the facts and the law
on which it is based"; 6 and that "Every decision of the
Court of Appeals shall contain complete findings of fact on
all issues properly raised before it". 7
A decision with absolutely nothing to support it is a nullity.
It is open to direct attack. 8 The law, however, solely insists
that a decision state the "essential ultimate facts" upon
which the court's conclusion is drawn. 9 A court of justice is
not hidebound to write in its decision every bit and piece of
evidence 10 presented by one party and the other upon the
issues raised. Neither is it to be burdened with the
obligation "to specify in the sentence the facts"which a
party "considered as proved". 11 This is but a part of the
mental process from which the Court draws the essential
ultimate facts. A decision is not to be so clogged with
details such that prolixity, if not confusion, may result. So
long as the decision of the Court of Appeals contains the
necessary facts to warrant its conclusions, it is no error for
said court to withhold therefrom "any specific finding of

facts with respect to the evidence for the defense".

Because as this Court well observed, "There is no law that
so requires". 12 Indeed, "the mere failure to specify (in the
decision) the contentions of the appellant and the reasons
for refusing to believe them is not sufficient to hold the
same contrary to the requirements of the provisions of law
and the Constitution". It is in this setting that in Manigque,
it was held that the mere fact that the findings "were based
entirely on the evidence for the prosecution without taking
into consideration or even mentioning the appellant's side
in the controversy as shown by his own testimony", would
not vitiate the judgment. 13 If the court did not recite in the
decision the testimony of each witness for, or each item of
evidence presented by, the defeated party, it does not
mean that the court has overlooked such testimony or
such item of evidence. 14 At any rate, the legal
presumptions are that official duty has been regularly
performed, and that all the matters within an issue in a
case were laid before the court and passed upon by it. 15
Findings of fact, which the Court of Appeals is required to
make, maybe defined as "the written statement of the
ultimate facts as found by the court ... and essential to
support the decision and judgment rendered
thereon". 16They consist of the
court's "conclusions" with respect to the determinative
facts in issue". 17 A question of law, upon the other hand,
has been declared as "one which does not call for an
examination of the probative value of the evidence
presented by the parties." 18

2. By statute, "only questions of law may be raised" in an

appeal by certiorari from a judgment of the Court of
Appeals. 19 That judgment is conclusive as to the facts. It
is not appropriately the business of this Court to alter the
facts or to review the questions of fact. 20
With these guideposts, we now face the problem of
whether the findings of fact of the Court of Appeals
support its judgment.
3. Was Carrascoso entitled to the first class seat he
claims?
It is conceded in all quarters that on March 28, 1958 he
paid to and received from petitioner a first class ticket. But
petitioner asserts that said ticket did not represent the true
and complete intent and agreement of the parties; that
said respondent knew that he did not have confirmed
reservations for first class on any specific flight, although
he had tourist class protection; that, accordingly, the
issuance of a first class ticket was no guarantee that he
would have a first class ride, but that such would depend
upon the availability of first class seats.
These are matters which petitioner has thoroughly
presented and discussed in its brief before the Court of
Appeals under its third assignment of error, which reads:
"The trial court erred in finding that plaintiff had confirmed
reservations for, and a right to, first class seats on the
"definite" segments of his journey, particularly that from
Saigon to Beirut". 21

And, the Court of Appeals disposed of this contention

thus:
Defendant seems to capitalize on the argument that
the issuance of a first-class ticket was no guarantee
that the passenger to whom the same had been
issued, would be accommodated in the first-class
compartment, for as in the case of plaintiff he had yet
to make arrangements upon arrival at every station
for the necessary first-class reservation. We are not
impressed by such a reasoning. We cannot
understand how a reputable firm like defendant
airplane company could have the indiscretion to give
out tickets it never meant to honor at all. It received
the corresponding amount in payment of first-class
tickets and yet it allowed the passenger to be at the
mercy of its employees. It is more in keeping with the
ordinary course of business that the company should
know whether or riot the tickets it issues are to be
honored or not.22
Not that the Court of Appeals is alone. The trial court
similarly disposed of petitioner's contention, thus:
On the fact that plaintiff paid for, and was issued a "First
class" ticket, there can be no question. Apart from his
testimony, see plaintiff's Exhibits "A", "A-1", "B", "B-1," "B2", "C" and "C-1", and defendant's own witness, Rafael
Altonaga, confirmed plaintiff's testimony and testified as
follows:

Q. In these tickets there are marks "O.K." From what

you know, what does this OK mean?
A. That the space is confirmed.
Q. Confirmed for first class?
A. Yes, "first class". (Transcript, p. 169)
xxx

xxx

xxx

Defendant tried to prove by the testimony of its witnesses

Luis Zaldariaga and Rafael Altonaga that although plaintiff
paid for, and was issued a "first class" airplane ticket, the
ticket was subject to confirmation in Hongkong. The court
cannot give credit to the testimony of said witnesses. Oral
evidence cannot prevail over written evidence, and
plaintiff's Exhibits "A", "A-l", "B", "B-l", "C" and "C-1" belie
the testimony of said witnesses, and clearly show that the
plaintiff was issued, and paid for, a first class ticket without
any reservation whatever.
Furthermore, as hereinabove shown, defendant's own
witness Rafael Altonaga testified that the reservation for a
"first class" accommodation for the plaintiff was confirmed.
The court cannot believe that after such confirmation
defendant had a verbal understanding with plaintiff that the
"first class" ticket issued to him by defendant would be
subject to confirmation in Hongkong. 23
We have heretofore adverted to the fact that except for a
slight difference of a few pesos in the amount refunded on
Carrascoso's ticket, the decision of the Court of First

Instance was affirmed by the Court of Appeals in all other

respects. We hold the view that such a judgment of
affirmance has merged the judgment of the lower
court. 24Implicit in that affirmance is a determination by the
Court of Appeals that the proceeding in the Court of First
Instance was free from prejudicial error and "all questions
raised by the assignments of error and all questions that
might have been raised are to be regarded as finally
adjudicated against the appellant". So also, the judgment
affirmed "must be regarded as free from all error". 25 We
reached this policy construction because nothing in the
decision of the Court of Appeals on this point would
suggest that its findings of fact are in any way at war with
those of the trial court. Nor was said affirmance by the
Court of Appeals upon a ground or grounds different from
those which were made the basis of the conclusions of the
trial court. 26
If, as petitioner underscores, a first-class-ticket holder is
not entitled to a first class seat, notwithstanding the fact
that seat availability in specific flights is therein confirmed,
then an air passenger is placed in the hollow of the hands
of an airline. What security then can a passenger have? It
will always be an easy matter for an airline aided by its
employees, to strike out the very stipulations in the ticket,
and say that there was a verbal agreement to the contrary.
What if the passenger had a schedule to fulfill? We have
long learned that, as a rule, a written document speaks a
uniform language; that spoken word could be notoriously
unreliable. If only to achieve stability in the relations
between passenger and air carrier, adherence to the ticket

so issued is desirable. Such is the case here. The lower

courts refused to believe the oral evidence intended to
defeat the covenants in the ticket.
The foregoing are the considerations which point to the
conclusion that there are facts upon which the Court of
Appeals predicated the finding that respondent
Carrascoso had a first class ticket and was entitled to a
first class seat at Bangkok, which is a stopover in the
Saigon to Beirut leg of the flight. 27 We perceive no "welter
of distortions by the Court of Appeals of petitioner's
statement of its position", as charged by petitioner. 28 Nor
do we subscribe to petitioner's accusation that respondent
Carrascoso "surreptitiously took a first class seat to
provoke an issue". 29 And this because, as petitioner
states, Carrascoso went to see the Manager at his office
in Bangkok "to confirm my seat and because from Saigon I
was told again to see the Manager". 30 Why, then, was he
allowed to take a first class seat in the plane at Bangkok, if
he had no seat? Or, if another had a better right to the
seat?
4. Petitioner assails respondent court's award of moral
damages. Petitioner's trenchant claim is that Carrascoso's
action is planted upon breach of contract; that to authorize
an award for moral damages there must be an averment
of fraud or bad faith;31 and that the decision of the Court of
Appeals fails to make a finding of bad faith. The pivotal
allegations in the complaint bearing on this issue are:
3. That ... plaintiff entered into a contract of air
carriage with the Philippine Air Lines for a valuable

consideration, the latter acting as general agents for

and in behalf of the defendant, under which said
contract, plaintiff was entitled to, as defendant agreed
to furnish plaintiff, First Class passage on defendant's
plane during the entire duration of plaintiff's tour of
Europe with Hongkong as starting point up to and
until plaintiff's return trip to Manila, ... .
4. That, during the first two legs of the trip from
Hongkong to Saigon and from Saigon to Bangkok,
defendant furnished to the plaintiff First Class
accommodation but only after protestations,
arguments and/or insistence were made by the
plaintiff with defendant's employees.
5. That finally, defendant failed to provide First Class
passage, but instead furnished plaintiff
only TouristClass accommodations from Bangkok to
Teheran and/or Casablanca, ... the plaintiff has
been compelled by defendant's employees to leave
the First Class accommodation berths at
Bangkok after he was already seated.
6. That consequently, the plaintiff, desiring no
repetition of the inconvenience and embarrassments
brought by defendant's breach of contract was forced
to take a Pan American World Airways plane on his
return trip from Madrid to Manila.32
xxx

xxx

xxx

2. That likewise, as a result of defendant's failure to furnish

First Class accommodations aforesaid, plaintiff suffered
inconveniences, embarrassments, and humiliations,
thereby causing plaintiff mental anguish, serious anxiety,
wounded feelings, social humiliation, and the like injury,
resulting in moral damages in the amount of
P30,000.00. 33
xxx

xxx

xxx

The foregoing, in our opinion, substantially aver: First,

That there was a contract to furnish plaintiff a first class
passage covering, amongst others, the Bangkok-Teheran
leg; Second, That said contract was breached when
petitioner failed to furnish first class transportation at
Bangkok; and Third, that there was bad faith when
petitioner's employee compelled Carrascoso to leave his
first class accommodation berth "after he was already,
seated" and to take a seat in the tourist class, by reason of
which he suffered inconvenience, embarrassments and
humiliations, thereby causing him mental anguish, serious
anxiety, wounded feelings and social humiliation, resulting
in moral damages. It is true that there is no specific
mention of the term bad faith in the complaint. But, the
inference of bad faith is there, it may be drawn from the
facts and circumstances set forth therein. 34 The contract
was averred to establish the relation between the parties.
But the stress of the action is put on wrongful expulsion.
Quite apart from the foregoing is that (a) right the start of
the trial, respondent's counsel placed petitioner on guard
on what Carrascoso intended to prove: That while sitting in

the plane in Bangkok, Carrascoso was oustedby

petitioner's manager who gave his seat to a white
man; 35 and (b) evidence of bad faith in the fulfillment of
the contract was presented without objection on the part of
the petitioner. It is, therefore, unnecessary to inquire as to
whether or not there is sufficient averment in the complaint
to justify an award for moral damages. Deficiency in the
complaint, if any, was cured by the evidence. An
amendment thereof to conform to the evidence is not even
required. 36 On the question of bad faith, the Court of
Appeals declared:
That the plaintiff was forced out of his seat in the first
class compartment of the plane belonging to the
defendant Air France while at Bangkok, and was
transferred to the tourist class not only without his
consent but against his will, has been sufficiently
established by plaintiff in his testimony before the
court, corroborated by the corresponding entry made
by the purser of the plane in his notebook which
notation reads as follows:
"First-class passenger was forced to go to the
tourist class against his will, and that the captain
refused to intervene",
and by the testimony of an eye-witness, Ernesto G.
Cuento, who was a co-passenger. The captain of the
plane who was asked by the manager of defendant
company at Bangkok to intervene even refused to do
so. It is noteworthy that no one on behalf of defendant
ever contradicted or denied this evidence for the

plaintiff. It could have been easy for defendant to

present its manager at Bangkok to testify at the trial of
the case, or yet to secure his disposition; but
defendant did neither. 37
The Court of appeals further stated
Neither is there evidence as to whether or not a prior
reservation was made by the white man. Hence, if the
employees of the defendant at Bangkok sold a firstclass ticket to him when all the seats had already
been taken, surely the plaintiff should not have been
picked out as the one to suffer the consequences and
to be subjected to the humiliation and indignity of
being ejected from his seat in the presence of others.
Instead of explaining to the white man the
improvidence committed by defendant's employees,
the manager adopted the more drastic step of ousting
the plaintiff who was then safely ensconsced in his
rightful seat. We are strengthened in our belief that
this probably was what happened there, by the
testimony of defendant's witness Rafael Altonaga
who, when asked to explain the meaning of the letters
"O.K." appearing on the tickets of plaintiff, said "that
the space is confirmed for first class. Likewise,
Zenaida Faustino, another witness for defendant, who
was the chief of the Reservation Office of defendant,
testified as follows:
"Q How does the person in the ticket-issuing
office know what reservation the passenger has
arranged with you?

A They call us up by phone and ask for the

confirmation." (t.s.n., p. 247, June 19, 1959)
In this connection, we quote with approval what the
trial Judge has said on this point:
Why did the, using the words of witness Ernesto
G. Cuento, "white man" have a "better right" to
the seat occupied by Mr. Carrascoso? The record
is silent. The defendant airline did not prove "any
better", nay, any right on the part of the "white
man" to the "First class" seat that the plaintiff was
occupying and for which he paid and was issued
a corresponding "first class" ticket.
If there was a justified reason for the action of the
defendant's Manager in Bangkok, the defendant
could have easily proven it by having taken the
testimony of the said Manager by deposition, but
defendant did not do so; the presumption is that
evidence willfully suppressed would be adverse if
produced [Sec. 69, par (e), Rules of Court]; and,
under the circumstances, the Court is
constrained to find, as it does find, that the
Manager of the defendant airline in Bangkok not
merely asked but threatened the plaintiff to throw
him out of the plane if he did not give up his "first
class" seat because the said Manager wanted to
accommodate, using the words of the witness
Ernesto G. Cuento, the "white man".38

It is really correct to say that the Court of Appeals in

the quoted portion first transcribed did not use the
term "bad faith". But can it be doubted that the recital
of facts therein points to bad faith? The manager not
only prevented Carrascoso from enjoying his right to a
first class seat; worse, he imposed his arbitrary will;
he forcibly ejected him from his seat, made him suffer
the humiliation of having to go to the tourist class
compartment - just to give way to another passenger
whose right thereto has not been established.
Certainly, this is bad faith. Unless, of course, bad faith
has assumed a meaning different from what is
understood in law. For, "bad faith" contemplates a
"state of mind affirmatively operating with furtive
design or with some motive of self-interest or will or
for ulterior purpose." 39
And if the foregoing were not yet sufficient, there is
the express finding of bad faith in the judgment of the
Court of First Instance, thus:
The evidence shows that the defendant violated
its contract of transportation with plaintiff in bad
faith, with the aggravating circumstances that
defendant's Manager in Bangkok went to the
extent of threatening the plaintiff in the presence
of many passengers to have him thrown out of
the airplane to give the "first class" seat that he
was occupying to, again using the words of the
witness Ernesto G. Cuento, a "white man" whom
he (defendant's Manager) wished to

accommodate, and the defendant has not proven

that this "white man" had any "better right" to
occupy the "first class" seat that the plaintiff was
occupying, duly paid for, and for which the
corresponding "first class" ticket was issued by
the defendant to him.40
5. The responsibility of an employer for the tortious act of
its employees need not be essayed. It is well settled in
law. 41 For the willful malevolent act of petitioner's
manager, petitioner, his employer, must answer. Article 21
of the Civil Code says:
ART. 21. Any person who willfully causes loss or
injury to another in a manner that is contrary to
morals, good customs or public policy shall
compensate the latter for the damage.
In parallel circumstances, we applied the foregoing legal
precept; and, we held that upon the provisions of Article
2219 (10), Civil Code, moral damages are recoverable. 42
6. A contract to transport passengers is quite different in
kind and degree from any other contractual relation. 43And
this, because of the relation which an air-carrier sustains
with the public. Its business is mainly with the travelling
public. It invites people to avail of the comforts and
advantages it offers. The contract of air carriage,
therefore, generates a relation attended with a public duty.
Neglect or malfeasance of the carrier's employees,
naturally, could give ground for an action for damages.

Passengers do not contract merely for transportation.

They have a right to be treated by the carrier's employees
with kindness, respect, courtesy and due consideration.
They are entitled to be protected against personal
misconduct, injurious language, indignities and abuses
from such employees. So it is, that any rule or
discourteous conduct on the part of employees towards a
passenger gives the latter an action for damages against
the carrier.44
Thus, "Where a steamship company 45 had accepted a
passenger's check, it was a breach of contract and a tort,
giving a right of action for its agent in the presence of third
persons to falsely notify her that the check was worthless
and demand payment under threat of ejection, though the
language used was not insulting and she was not
ejected." 46 And this, because, although the relation of
passenger and carrier is "contractual both in origin and
nature" nevertheless "the act that breaks the contract may
be also a tort". 47 And in another case, "Where a
passenger on a railroad train, when the conductor came to
collect his fare tendered him the cash fare to a point where
the train was scheduled not to stop, and told him that as
soon as the train reached such point he would pay the
cash fare from that point to destination, there was nothing
in the conduct of the passenger which justified the
conductor in using insulting language to him, as by calling
him a lunatic," 48 and the Supreme Court of South Carolina
there held the carrier liable for the mental suffering of said
passenger.1awphl.nt

Petitioner's contract with Carrascoso is one attended with

public duty. The stress of Carrascoso's action as we have
said, is placed upon his wrongful expulsion. This is a
violation of public duty by the petitioner air carrier a
case of quasi-delict. Damages are proper.
7. Petitioner draws our attention to respondent
Carrascoso's testimony, thus
Q You mentioned about an attendant. Who is that
attendant and purser?
A When we left already that was already in the trip
I could not help it. So one of the flight attendants
approached me and requested from me my ticket and
I said, What for? and she said, "We will note that you
transferred to the tourist class". I said, "Nothing of that
kind. That is tantamount to accepting my transfer."
And I also said, "You are not going to note anything
there because I am protesting to this transfer".
Q Was she able to note it?
A No, because I did not give my ticket.
Q About that purser?
A Well, the seats there are so close that you feel
uncomfortable and you don't have enough leg room, I
stood up and I went to the pantry that was next to me
and the purser was there. He told me, "I have
recorded the incident in my notebook." He read it and
translated it to me because it was recorded in

French "First class passenger was forced to go to

the tourist class against his will, and that the captain
refused to intervene."
Mr. VALTE
I move to strike out the last part of the testimony of
the witness because the best evidence would be the
notes. Your Honor.
COURT
I will allow that as part of his testimony. 49
Petitioner charges that the finding of the Court of Appeals
that the purser made an entry in his notebook reading
"First class passenger was forced to go to the tourist class
against his will, and that the captain refused to intervene"
is predicated upon evidence [Carrascoso's testimony
above] which is incompetent. We do not think so. The
subject of inquiry is not the entry, but the ouster incident.
Testimony on the entry does not come within the
proscription of the best evidence rule. Such testimony is
admissible. 49a
Besides, from a reading of the transcript just quoted, when
the dialogue happened, the impact of the startling
occurrence was still fresh and continued to be felt. The
excitement had not as yet died down. Statements then, in
this environment, are admissible as part of the res
gestae. 50 For, they grow "out of the nervous excitement
and mental and physical condition of the declarant". 51 The
utterance of the purser regarding his entry in the notebook

was spontaneous, and related to the circumstances of the

ouster incident. Its trustworthiness has been
guaranteed. 52 It thus escapes the operation of the
hearsay rule. It forms part of the res gestae.
At all events, the entry was made outside the Philippines.
And, by an employee of petitioner. It would have been an
easy matter for petitioner to have contradicted
Carrascoso's testimony. If it were really true that no such
entry was made, the deposition of the purser could have
cleared up the matter.
We, therefore, hold that the transcribed testimony of
Carrascoso is admissible in evidence.
8. Exemplary damages are well awarded. The Civil Code
gives the court ample power to grant exemplary damages
in contracts and quasi- contracts. The only condition is
that defendant should have "acted in a wanton, fraudulent,
reckless, oppressive, or malevolent manner." 53 The
manner of ejectment of respondent Carrascoso from his
first class seat fits into this legal precept. And this, in
addition to moral damages.54
9. The right to attorney's fees is fully established. The
grant of exemplary damages justifies a similar judgment
for attorneys' fees. The least that can be said is that the
courts below felt that it is but just and equitable that
attorneys' fees be given. 55 We do not intend to break faith
with the tradition that discretion well exercised as it was
here should not be disturbed.

10. Questioned as excessive are the amounts decreed by

both the trial court and the Court of Appeals, thus:
P25,000.00 as moral damages; P10,000.00, by way of
exemplary damages, and P3,000.00 as attorneys' fees.
The task of fixing these amounts is primarily with the trial
court. 56 The Court of Appeals did not interfere with the
same. The dictates of good sense suggest that we give
our imprimatur thereto. Because, the facts and
circumstances point to the reasonableness thereof.57
On balance, we say that the judgment of the Court of
Appeals does not suffer from reversible error. We
accordingly vote to affirm the same. Costs against
petitioner. So ordered.
Concepcion, C.J., Reyes, J.B.L., Barrera, Dizon, Regala,
Makalintal, Zaldivar and Castro, JJ., concur.
Bengzon, J.P., J., took no part.

CONCURRENCE OF CAUSES OF ACTION

LOADMASTERS CUSTOMS
SERVICES, INC.,
Petitioner,

G.R. No. 179446

Present:
CARPIO, J., Chairper
son,
NACHURA,
PERALTA,
ABAD, and
MENDOZA, JJ.

- versus -

GLODEL BROKERAGE
CORPORATION and
R&B INSURANCE
CORPORATION,
Respond
ents.

Promulgated:
January 10, 2011

X ----------------------------------------------------------------------- X
DECISION

MENDOZA, J.:

This is a petition for review on certiorari under Rule

45 of the Revised Rules of Court assailing the August 24,

2007 Decision[1] of the Court of Appeals (CA) in CA-G.R.

CV No. 82822, entitled R&B Insurance Corporation v.
Glodel Brokerage Corporation and Loadmasters Customs
Services, Inc., which held petitioner Loadmasters Customs
Services, Inc. (Loadmasters) liable to respondent Glodel
Brokerage Corporation (Glodel) in the amount
of P1,896,789.62 representing the insurance indemnity
which R&B Insurance Corporation (R&B Insurance) paid to
the insured-consignee, Columbia Wire and Cable
Corporation (Columbia).

THE FACTS:

On August 28, 2001, R&B Insurance issued Marine

Policy No. MN-00105/2001 in favor of Columbia to insure
the shipment of 132 bundles of electric copper cathodes
against All Risks. On August 28, 2001, the cargoes were
shipped on board the vessel Richard Rey from
Isabela, Leyte, to Pier 10, North Harbor, Manila. They
arrived on the same date.
Columbia engaged the services of Glodel for the
release and withdrawal of the cargoes from the pier and the
subsequent delivery to its warehouses/plants. Glodel, in
turn, engaged the services of Loadmasters for the use of its
delivery trucks to transport the cargoes to Columbias
warehouses/plants in Bulacan and Valenzuela City.

The goods were loaded on board twelve (12) trucks

owned by Loadmasters, driven by its employed drivers and
accompanied by its employed truck helpers. Six (6)
truckloads of copper cathodes were to be delivered to
Balagtas, Bulacan, while the other six (6) truckloads were
destined for Lawang Bato, Valenzuela City. The cargoes in
six truckloads for Lawang Bato were duly delivered
in Columbias warehouses there. Of the six (6) trucks en
route to Balagtas, Bulacan, however, only five (5) reached
the destination. One (1) truck, loaded with 11 bundles or
232 pieces of copper cathodes, failed to deliver its cargo.
Later on, the said truck, an Isuzu with Plate No. NSD117, was recovered but without the copper
cathodes. Because of this incident, Columbia filed with
R&B Insurance a claim for insurance indemnity in the
amount of P1,903,335.39. After the requisite investigation
and adjustment, R&B Insurance paid Columbia the amount
of P1,896,789.62 as insurance indemnity.
R&B Insurance, thereafter, filed a complaint for
damages against both Loadmasters and Glodel before the
Regional Trial Court, Branch 14, Manila (RTC), docketed as
Civil Case No. 02-103040. It sought reimbursement of the
amount it had paid to Columbia for the loss of the subject
cargo. It claimed that it had been subrogated to the right
of the consignee to recover from the party/parties who may
be held legally liable for the loss.[2]

On November 19, 2003, the RTC rendered a

decision holding Glodel liable for damages for the loss of
the subject cargo and dismissing Loadmasters
counterclaim for damages and attorneys fees against R&B
Insurance. The dispositive portion of the decision reads:
[3]

WHEREFORE, all premises considered, the

plaintiff having established by preponderance of
evidence its claims against defendant Glodel
Brokerage Corporation, judgment is hereby
rendered ordering the latter:

1.

To pay plaintiff R&B Insurance

Corporation the sum of P1,896,789.62
as actual and compensatory damages,
with interest from the date of complaint
until fully paid;

2.

To pay plaintiff R&B Insurance

Corporation the amount equivalent to
10% of the principal amount recovered
as
and
for
attorneys
fees
plus P1,500.00 per appearance in
Court;

3.

To pay plaintiff R&B Insurance

Corporation the sum of P22,427.18 as
litigation expenses.

WHEREAS, the defendant Loadmasters

Customs Services, Inc.s counterclaim for
damages and attorneys fees against plaintiff are
hereby dismissed.

With costs against

Brokerage Corporation.
SO ORDERED.[4]

defendant

Glodel

Both R&B Insurance and Glodel appealed the RTC

decision to the CA.
On August 24, 2007, the CA rendered the assailed
decision which reads in part:
Considering that appellee is an agent of
appellant Glodel, whatever liability the latter owes
to appellant R&B Insurance Corporation as
insurance indemnity must likewise be the amount
it shall be paid by appellee Loadmasters.
WHEREFORE, the foregoing considered, the
appeal is PARTLY GRANTED in that the appellee
Loadmasters is likewise held liable to appellant
Glodel
in
the
amount
ofP1,896,789.62

representing the insurance indemnity appellant

Glodel has been held liable to appellant R&B
Insurance Corporation.
Appellant Glodels appeal to absolve it from
any liability is herein DISMISSED.
SO ORDERED.[5]
Hence, Loadmasters filed the present petition for
review on certiorari before this Court presenting the
following
ISSUES

1. Can Petitioner Loadmasters be held liable

to Respondent Glodel in spite of the fact that
the latter respondent Glodel did not file a
cross-claim against it (Loadmasters)?
2. Under the set of facts established and
undisputed in the case, can petitioner
Loadmasters be legally considered as an
Agent of respondent Glodel?[6]

To totally exculpate itself from responsibility for the lost

goods, Loadmasters argues that it cannot be considered an
agent of Glodel because it never represented the latter in

its dealings with the consignee. At any rate, it further

contends that Glodel has no recourse against it for its
(Glodels) failure to file a cross-claim pursuant to Section 2,
Rule 9 of the 1997 Rules of Civil Procedure.
Glodel, in its Comment,[7] counters that Loadmasters
is liable to it under its cross-claim because the latter was
grossly negligent in the transportation of the subject
cargo. With respect to Loadmasters claim that it is already
estopped from filing a cross-claim, Glodel insists that it can
still do so even for the first time on appeal because there is
no rule that provides otherwise. Finally, Glodel argues that
its relationship with Loadmasters is that of Charter wherein
the transporter (Loadmasters) is only hired for the specific
job of delivering the merchandise. Thus, the diligence
required in this case is merely ordinary diligence or that of
a good father of the family, not the extraordinary diligence
required of common carriers.
R&B Insurance, for its part, claims that Glodel is
deemed to have interposed a cross-claim against
Loadmasters because it was not prevented from presenting
evidence to prove its position even without amending its
Answer. As to the relationship between Loadmasters and
Glodel, it contends that a contract of agency existed
between the two corporations.[8]
Subrogation is the substitution of one person in the
place of another with reference to a lawful claim or right, so
that he who is substituted succeeds to the rights of the other

in relation to a debt or claim, including its remedies or

securities.[9] Doubtless, R&B Insurance is subrogated to the
rights of the insured to the extent of the amount it paid the
consignee under the marine insurance, as provided under
Article 2207 of the Civil Code, which reads:
ART. 2207. If the plaintiffs property has been
insured, and he has received indemnity from the
insurance company for the injury or loss arising
out of the wrong or breach of contract complained
of, the insurance company shall be subrogated to
the rights of the insured against the wrong-doer or
the person who has violated the contract. If the
amount paid by the insurance company does not
fully cover the injury or loss, the aggrieved party
shall be entitled to recover the deficiency from the
person causing the loss or injury.
As subrogee of the rights and interest of the consignee,
R&B Insurance has the right to seek reimbursement from
either Loadmasters or Glodel or both for breach of contract
and/or tort.
The issue now is who, between Glodel and
Loadmasters, is liable to pay R&B Insurance for the amount
of the indemnity it paid Columbia.
At the outset, it is well to resolve the issue of whether
Loadmasters and Glodel are common carriers to determine
their liability for the loss of the subject cargo. Under Article

1732 of the Civil Code, common carriers are persons,

corporations, firms, or associations engaged in the
business of carrying or transporting passenger or goods, or
both by land, water or air for compensation, offering their
services to the public.

Based on the aforecited definition, Loadmasters is a

common carrier because it is engaged in the business of
transporting goods by land, through its trucking service. It
is acommon carrier as distinguished from a private
carrier wherein the carriage is generally undertaken by
special agreement and it does not hold itself out to carry
goods for the general public.[10] The distinction is significant
in the sense that the rights and obligations of the parties to
a contract of private carriage are governed principally by
their stipulations, not by the law on common carriers.[11]
In the present case, there is no indication that the
undertaking in the contract between Loadmasters and
Glodel was private in character. There is no showing that
Loadmasters solely and exclusively rendered services to
Glodel.
In fact, Loadmasters admitted that it is a common
carrier.[12]
In the same vein, Glodel is also considered a common
carrier within the context of Article 1732.
In its

Memorandum,[13] it states that it is a corporation duly

organized and existing under the laws of the Republic of
the Philippines and is engaged in the business of customs
brokering. It cannot be considered otherwise because as
held by this Court in Schmitz Transport & Brokerage
Corporation v. Transport Venture, Inc.,[14] a customs broker
is also regarded as a common carrier, the transportation of
goods being an integral part of its business.
Loadmasters and Glodel, being both common carriers,
are mandated from the nature of their business and for
reasons of public policy, to observe the extraordinary
diligence in the vigilance over the goods transported by
them according to all the circumstances of such case, as
required by Article 1733 of the Civil Code. When the Court
speaks of extraordinary diligence, it is that extreme
measure of care and caution which persons of unusual
prudence and circumspection observe for securing and
preserving their own property or rights.[15] This exacting
standard imposed on common carriers in a contract of
carriage of goods is intended to tilt the scales in favor of the
shipper who is at the mercy of the common carrier once the
goods have been lodged for shipment.[16] Thus, in case of
loss of the goods, the common carrier is presumed to have
been at fault or to have acted negligently.[17] This
presumption of fault or negligence, however, may be
rebutted by proof that the common carrier has observed
extraordinary diligence over the goods.
With respect to the time frame of this extraordinary
responsibility, the Civil Code provides that the exercise of

extraordinary diligence lasts from the time the goods are

unconditionally placed in the possession of, and received
by, the carrier for transportation until the same are
delivered, actually or constructively, by the carrier to the
consignee, or to the person who has a right to receive
them.[18]
Premises considered, the Court is of the view that both
Loadmasters and Glodel are jointly and severally liable to R
& B Insurance for the loss of the subject cargo. Under
Article 2194 of the New Civil Code, the responsibility of two
or more persons who are liable for a quasi-delict is solidary.
Loadmasters claim that it was never privy to the
contract
entered
into
by
Glodel
with
the
consignee Columbia or R&B Insurance as subrogee, is not
a valid defense. It may not have a direct contractual relation
with Columbia, but it is liable for tort under the provisions of
Article 2176 of the Civil Code on quasi-delicts which
expressly provide:
ART. 2176. Whoever by act or omission
causes damage to another, there being fault or
negligence, is obliged to pay for the damage
done. Such fault or negligence, if there is no preexisting contractual relation between the parties,
is called a quasi-delict and is governed by the
provisions of this Chapter.

Pertinent is the ruling enunciated in the case

of Mindanao Terminal and Brokerage Service, Inc. v.
Phoenix Assurance Company of New York,/McGee & Co.,
Inc.[19]where this Court held that a tort may arise despite the
absence of a contractual relationship, to wit:
We agree with the Court of Appeals that
the complaint filed by Phoenix and McGee against
Mindanao Terminal, from which the present case
has arisen, states a cause of action. The present
action is based on quasi-delict, arising from the
negligent and careless loading and stowing of the
cargoes belonging to Del Monte Produce. Even
assuming that both Phoenix and McGee have only
been subrogated in the rights of Del Monte
Produce, who is not a party to the contract of
service between Mindanao Terminal and Del
Monte, still the insurance carriers may have a
cause of action in light of the Courts consistent
ruling that the act that breaks the contract may be
also a tort. In fine, a liability for tort may arise
even under a contract, where tort is that which
breaches the contract.
In the present
case, Phoenix and McGee are not suing for
damages for injuries arising from the breach of
the contract of service but from the alleged
negligent manner by which Mindanao Terminal
handled the cargoes belonging to Del Monte
Produce. Despite the absence of contractual
relationship between Del Monte Produce and
Mindanao Terminal, the allegation of negligence

on the part of the defendant should be sufficient to

establish a cause of action arising from quasidelict. [Emphases supplied]

In connection therewith, Article 2180 provides:

ART. 2180. The obligation imposed by Article
2176 is demandable not only for ones own acts or
omissions, but also for those of persons for whom
one is responsible.
xxxx
Employers shall be liable for the damages
caused by their employees and household helpers
acting within the scope of their assigned tasks,
even though the former are not engaged in any
business or industry.

It is not disputed that the subject cargo was lost while

in the custody of Loadmasters whose employees (truck
driver and helper) were instrumental in the hijacking or
robbery of the shipment. As employer, Loadmasters should
be made answerable for the damages caused by its
employees who acted within the scope of their assigned
task of delivering the goods safely to the warehouse.

or

Whenever an employees negligence causes damage

injury to another, there instantly arises a

presumption juris tantum that the employer failed to

exercise diligentissimi patris families in the selection (culpa
in eligiendo) or supervision (culpa in vigilando) of its
employees.[20] To avoid liability for a quasi-delict committed
by its employee, an employer must overcome the
presumption by presenting convincing proof that he
exercised the care and diligence of a good father of a family
in the selection and supervision of his employee.[21] In this
regard, Loadmasters failed.
Glodel is also liable because of its failure to exercise
extraordinary diligence.
It failed to ensure that
Loadmasters would fully comply with the undertaking to
safely transport the subject cargo to the designated
destination. It should have been more prudent in entrusting
the goods to Loadmasters by taking precautionary
measures, such as providing escorts to accompany the
trucks in delivering the cargoes. Glodel should, therefore,
be held liable with Loadmasters. Its defense of force
majeure is unavailing.
At this juncture, the Court clarifies that there exists no
principal-agent
relationship
between Glodel and
Loadmasters, as erroneously found by the CA. Article 1868
of the Civil Code provides: By the contract of agency a
person binds himself to render some service or to do
something in representation or on behalf of another, with
the consent or authority of the latter. The elements of a
contract of agency are: (1) consent, express or implied, of
the parties to establish the relationship; (2) the object is the
execution of a juridical act in relation to a third person; (3)

the agent acts as a representative and not for himself; (4)

the agent acts within the scope of his authority.[22]
Accordingly, there can be no contract of agency
between the parties. Loadmasters never represented
Glodel. Neither was it ever authorized to make such
representation. It is a settled rule that the basis for agency
is representation, that is, the agent acts for and on behalf of
the principal on matters within the scope of his authority and
said acts have the same legal effect as if they were
personally executed by the principal. On the part of the
principal, there must be an actual intention to appoint or an
intention naturally inferable from his words or actions, while
on the part of the agent, there must be an intention to accept
the appointment and act on it.[23] Such mutual intent is not
obtaining in this case.
What then is the extent of the respective liabilities of
Loadmasters and Glodel? Each wrongdoer is liable for the
total damage suffered by R&B Insurance. Where there are
several causes for the resulting damages, a party is not
relieved from liability, even partially. It is sufficient that the
negligence of a party is an efficient cause without which the
damage would not have resulted. It is no defense to one of
the concurrent tortfeasors that the damage would not have
resulted from his negligence alone, without the negligence
or wrongful acts of the other concurrent tortfeasor. As
stated in the case of Far Eastern Shipping v. Court of
Appeals,[24]

X x x. Where several causes producing an

injury are concurrent and each is an efficient
cause without which the injury would not have
happened, the injury may be attributed to all or any
of the causes and recovery may be had against
any or all of the responsible persons although
under the circumstances of the case, it may
appear that one of them was more culpable, and
that the duty owed by them to the injured person
was not the same. No actor's negligence ceases
to be a proximate cause merely because it does
not exceed the negligence of other actors. Each
wrongdoer is responsible for the entire result and
is liable as though his acts were the sole cause of
the injury.
There is no contribution between joint
tortfeasors whose liability is solidary since both of
them are liable for the total damage. Where the
concurrent or successive negligent acts or
omissions of two or more persons, although acting
independently, are in combination the direct and
proximate cause of a single injury to a third person,
it is impossible to determine in what proportion
each contributed to the injury and either of them
is responsible for the whole injury. Where their
concurring negligence resulted in injury or damage
to a third party, they become joint tortfeasors and
are solidarily liable for the resulting damage under
Article 2194 of the Civil Code. [Emphasis supplied]

The Court now resolves the issue of whether Glodel

can collect from Loadmasters, it having failed to file a crossclaim against the latter.
Undoubtedly, Glodel has a definite cause of action
against Loadmasters for breach of contract of service as the
latter is primarily liable for the loss of the subject cargo. In
this case, however, it cannot succeed in seeking judicial
sanction against Loadmasters because the records
disclose that it did not properly interpose a cross-claim
against the latter.
Glodel did not even pray that
Loadmasters be liable for any and all claims that it may be
adjudged liable in favor of R&B Insurance. Under the
Rules, a compulsory counterclaim, or a cross-claim, not set
up shall be barred.[25] Thus, a cross-claim cannot be set up
for the first time on appeal.
For the consequence, Glodel has no one to blame but
itself. The Court cannot come to its aid on equitable
grounds. Equity, which has been aptly described as a
justice outside legality, is applied only in the absence of,
and never against, statutory law or judicial rules of
procedure.[26] The Court cannot be a lawyer and take the
cudgels for a party who has been at fault or negligent.

WHEREFORE,
the
petition
is
PARTIALLY
GRANTED. The August 24, 2007 Decision of the Court of
Appeals is MODIFIED to read as follows:

WHEREFORE, judgment is rendered

declaring petitioner Loadmasters Customs
Services, Inc. and respondent Glodel Brokerage
Corporation jointly and severally liable to
respondent R&B Insurance Corporation for the
insurance indemnity it paid to consignee Columbia
Wire & Cable Corporation and ordering both
parties to pay, jointly and severally, R&B
Insurance
Corporation
a]
the
amount
of P1,896,789.62 representing the insurance
indemnity; b] the amount equivalent to ten (10%)
percent thereof for attorneys fees; and c] the
amount of P22,427.18 for litigation expenses.
The cross-claim belatedly prayed for by
respondent Glodel Brokerage Corporation against
petitioner Loadmasters Customs Services, Inc. is
DENIED.
SO ORDERED.

G.R. No. 145804

February 6, 2003

LIGHT RAIL TRANSIT AUTHORITY & RODOLFO

ROMAN, petitioners,
vs.
MARJORIE NAVIDAD, Heirs of the Late NICANOR
NAVIDAD & PRUDENT SECURITY
AGENCY, respondents.
DECISION
VITUG, J.:
The case before the Court is an appeal from the decision
and resolution of the Court of Appeals, promulgated on 27
April 2000 and 10 October 2000, respectively, in CA-G.R.
CV No. 60720, entitled "Marjorie Navidad and Heirs of the
Late Nicanor Navidad vs. Rodolfo Roman, et. al.," which
has modified the decision of 11 August 1998 of the
Regional Trial Court, Branch 266, Pasig City, exonerating
Prudent Security Agency (Prudent) from liability and
finding Light Rail Transit Authority (LRTA) and Rodolfo
Roman liable for damages on account of the death of
Nicanor Navidad.
On 14 October 1993, about half an hour past seven
oclock in the evening, Nicanor Navidad, then drunk,
entered the EDSA LRT station after purchasing a "token"
(representing payment of the fare). While Navidad was
standing on the platform near the LRT tracks, Junelito
Escartin, the security guard assigned to the area
approached Navidad. A misunderstanding or an

altercation between the two apparently ensued that led to

a fist fight. No evidence, however, was adduced to
indicate how the fight started or who, between the two,
delivered the first blow or how Navidad later fell on the
LRT tracks. At the exact moment that Navidad fell, an LRT
train, operated by petitioner Rodolfo Roman, was coming
in. Navidad was struck by the moving train, and he was
killed instantaneously.
On 08 December 1994, the widow of Nicanor, herein
respondent Marjorie Navidad, along with her children, filed
a complaint for damages against Junelito Escartin,
Rodolfo Roman, the LRTA, the Metro Transit
Organization, Inc. (Metro Transit), and Prudent for the
death of her husband. LRTA and Roman filed a
counterclaim against Navidad and a cross-claim against
Escartin and Prudent. Prudent, in its answer, denied
liability and averred that it had exercised due diligence in
the selection and supervision of its security guards.
The LRTA and Roman presented their evidence while
Prudent and Escartin, instead of presenting evidence, filed
a demurrer contending that Navidad had failed to prove
that Escartin was negligent in his assigned task. On 11
August 1998, the trial court rendered its decision; it
adjudged:
"WHEREFORE, judgment is hereby rendered in favor of
the plaintiffs and against the defendants Prudent Security
and Junelito Escartin ordering the latter to pay jointly and
severally the plaintiffs the following:

"a) 1) Actual damages of P44,830.00;

2) Compensatory damages of P443,520.00;
3) Indemnity for the death of Nicanor Navidad in the
sum of P50,000.00;
"b) Moral damages of P50,000.00;
"c) Attorneys fees of P20,000;
"d) Costs of suit.
"The complaint against defendants LRTA and Rodolfo
Roman are dismissed for lack of merit.
"The compulsory counterclaim of LRTA and Roman are
likewise dismissed."1
Prudent appealed to the Court of Appeals. On 27 August
2000, the appellate court promulgated its now assailed
decision exonerating Prudent from any liability for the
death of Nicanor Navidad and, instead, holding the LRTA
and Roman jointly and severally liable thusly:
"WHEREFORE, the assailed judgment is hereby
MODIFIED, by exonerating the appellants from any liability
for the death of Nicanor Navidad, Jr. Instead, appellees
Rodolfo Roman and the Light Rail Transit Authority
(LRTA) are held liable for his death and are hereby
directed to pay jointly and severally to the plaintiffsappellees, the following amounts:
a) P44,830.00 as actual damages;

b) P50,000.00 as nominal damages;

c) P50,000.00 as moral damages;
d) P50,000.00 as indemnity for the death of the
deceased; and
e) P20,000.00 as and for attorneys fees."2
The appellate court ratiocinated that while the deceased
might not have then as yet boarded the train, a contract of
carriage theretofore had already existed when the victim
entered the place where passengers were supposed to be
after paying the fare and getting the corresponding token
therefor. In exempting Prudent from liability, the court
stressed that there was nothing to link the security agency
to the death of Navidad. It said that Navidad failed to show
that Escartin inflicted fist blows upon the victim and the
evidence merely established the fact of death of Navidad
by reason of his having been hit by the train owned and
managed by the LRTA and operated at the time by
Roman. The appellate court faulted petitioners for their
failure to present expert evidence to establish the fact that
the application of emergency brakes could not have
stopped the train.
The appellate court denied petitioners motion for
reconsideration in its resolution of 10 October 2000.
In their present recourse, petitioners recite alleged errors
on the part of the appellate court; viz:
"I.

THE HONORABLE COURT OF APPEALS GRAVELY

ERRED BY DISREGARDING THE FINDINGS OF FACTS
BY THE TRIAL COURT
"II.
THE HONORABLE COURT OF APPEALS GRAVELY
ERRED IN FINDING THAT PETITIONERS ARE LIABLE
FOR THE DEATH OF NICANOR NAVIDAD, JR.
"III.
THE HONORABLE COURT OF APPEALS GRAVELY
ERRED IN FINDING THAT RODOLFO ROMAN IS AN
EMPLOYEE OF LRTA."3
Petitioners would contend that the appellate court ignored
the evidence and the factual findings of the trial court by
holding them liable on the basis of a sweeping conclusion
that the presumption of negligence on the part of a
common carrier was not overcome. Petitioners would
insist that Escartins assault upon Navidad, which caused
the latter to fall on the tracks, was an act of a stranger that
could not have been foreseen or prevented. The LRTA
would add that the appellate courts conclusion on the
existence of an employer-employee relationship between
Roman and LRTA lacked basis because Roman himself
had testified being an employee of Metro Transit and not
of the LRTA.
Respondents, supporting the decision of the appellate
court, contended that a contract of carriage was deemed
created from the moment Navidad paid the fare at the LRT

station and entered the premises of the latter, entitling

Navidad to all the rights and protection under a contractual
relation, and that the appellate court had correctly held
LRTA and Roman liable for the death of Navidad in failing
to exercise extraordinary diligence imposed upon a
common carrier.
Law and jurisprudence dictate that a common carrier, both
from the nature of its business and for reasons of public
policy, is burdened with the duty of exercising utmost
diligence in ensuring the safety of passengers.4 The Civil
Code, governing the liability of a common carrier for death
of or injury to its passengers, provides:
"Article 1755. A common carrier is bound to carry the
passengers safely as far as human care and foresight can
provide, using the utmost diligence of very cautious
persons, with a due regard for all the circumstances.
"Article 1756. In case of death of or injuries to passengers,
common carriers are presumed to have been at fault or to
have acted negligently, unless they prove that they
observed extraordinary diligence as prescribed in articles
1733 and 1755."
"Article 1759. Common carriers are liable for the death of
or injuries to passengers through the negligence or willful
acts of the formers employees, although such employees
may have acted beyond the scope of their authority or in
violation of the orders of the common carriers.

"This liability of the common carriers does not cease upon

proof that they exercised all the diligence of a good father
of a family in the selection and supervision of their
employees."
"Article 1763. A common carrier is responsible for injuries
suffered by a passenger on account of the willful acts or
negligence of other passengers or of strangers, if the
common carriers employees through the exercise of the
diligence of a good father of a family could have prevented
or stopped the act or omission."
The law requires common carriers to carry passengers
safely using the utmost diligence of very cautious persons
with due regard for all circumstances.5 Such duty of a
common carrier to provide safety to its passengers so
obligates it not only during the course of the trip but for so
long as the passengers are within its premises and where
they ought to be in pursuance to the contract of
carriage.6 The statutory provisions render a common
carrier liable for death of or injury to passengers (a)
through the negligence or wilful acts of its employees or b)
on account of wilful acts or negligence of other
passengers or of strangers if the common carriers
employees through the exercise of due diligence could
have prevented or stopped the act or omission.7 In case of
such death or injury, a carrier is presumed to have been at
fault or been negligent, and8 by simple proof of injury, the
passenger is relieved of the duty to still establish the fault
or negligence of the carrier or of its employees and the
burden shifts upon the carrier to prove that the injury is

due to an unforeseen event or to force majeure.9 In the

absence of satisfactory explanation by the carrier on how
the accident occurred, which petitioners, according to the
appellate court, have failed to show, the presumption
would be that it has been at fault,10 an exception from the
general rule that negligence must be proved.11
The foundation of LRTAs liability is the contract of
carriage and its obligation to indemnify the victim arises
from the breach of that contract by reason of its failure to
exercise the high diligence required of the common
carrier. In the discharge of its commitment to ensure the
safety of passengers, a carrier may choose to hire its own
employees or avail itself of the services of an outsider or
an independent firm to undertake the task. In either case,
the common carrier is not relieved of its responsibilities
under the contract of carriage.
Should Prudent be made likewise liable? If at all, that
liability could only be for tort under the provisions of Article
217612 and related provisions, in conjunction with Article
2180,13 of the Civil Code. The premise, however, for the
employers liability is negligence or fault on the part of the
employee. Once such fault is established, the employer
can then be made liable on the basis of the presumption
juris tantum that the employer failed to exercise
diligentissimi patris families in the selection and
supervision of its employees. The liability is primary and
can only be negated by showing due diligence in the
selection and supervision of the employee, a factual
matter that has not been shown. Absent such a showing,

one might ask further, how then must the liability of the
common carrier, on the one hand, and an independent
contractor, on the other hand, be described? It would be
solidary. A contractual obligation can be breached by tort
and when the same act or omission causes the injury, one
resulting in culpa contractual and the other in culpa
aquiliana, Article 219414 of the Civil Code can well
apply.15 In fine, a liability for tort may arise even under a
contract, where tort is that which breaches the
contract.16 Stated differently, when an act which
constitutes a breach of contract would have itself
constituted the source of a quasi-delictual liability had no
contract existed between the parties, the contract can be
said to have been breached by tort, thereby allowing the
rules on tort to apply.17
Regrettably for LRT, as well as perhaps the surviving
spouse and heirs of the late Nicanor Navidad, this Court is
concluded by the factual finding of the Court of Appeals
that "there is nothing to link (Prudent) to the death of
Nicanor (Navidad), for the reason that the negligence of its
employee, Escartin, has not been duly proven x x x." This
finding of the appellate court is not without substantial
justification in our own review of the records of the case.
There being, similarly, no showing that petitioner Rodolfo
Roman himself is guilty of any culpable act or omission, he
must also be absolved from liability. Needless to say, the
contractual tie between the LRT and Navidad is not itself a
juridical relation between the latter and Roman; thus,

Roman can be made liable only for his own fault or

negligence.
The award of nominal damages in addition to actual
damages is untenable. Nominal damages are adjudicated
in order that a right of the plaintiff, which has been violated
or invaded by the defendant, may be vindicated or
recognized, and not for the purpose of indemnifying the
plaintiff for any loss suffered by him.18 It is an established
rule that nominal damages cannot co-exist with
compensatory damages.19
WHEREFORE, the assailed decision of the appellate court
is AFFIRMED with MODIFICATION but only in that (a) the
award of nominal damages is DELETED and (b) petitioner
Rodolfo Roman is absolved from liability. No costs.
SO ORDERED.
Davide, Jr., C.J., (Chairman), Ynares-Santiago, Carpio
and Azcuna, JJ., concur.

[G.R. No. 151452. July 29, 2005]

SPS. ANTONIO C. SANTOS and ESPERANZA C.
SANTOS, NORA BARNALO, BELINDA
LUMACTAD, MARIENELA DY, NIKKA SANTOS
and LEONARDO FERRER, petitioners, vs. HON.
NORMANDIE B. PIZARDO, as Presiding Judge,
RTC of Quezon City, Branch 101, DIONISIO M
SIBAYAN, and VIRON TRANSPORTATION
COMPANY, INC., represented by VIRGILIO Q.
RONDARIS, President/Chairman, respondents.
DECISION
TINGA, J.:
In this Petition for Review on Certiorari[1] dated March 1,
2002, petitioners assail the Resolutions of the Court of
Appeals dated September 10, 2001 and January 9, 2002,
respectively dismissing their petition for certiorari and
denying their motion for reconsideration, arising from the
dismissal of their complaint to recover civil indemnity for the
death and physical injuries of their kin.
The following facts are matters of record.

In an Information dated April 25, 1994, Dionisio M.

Sibayan (Sibayan) was charged with Reckless Imprudence
Resulting to Multiple Homicide and Multiple Physical
Injuries in connection with a vehicle collision between a
southbound Viron Transit bus driven by Sibayan and a
northbound Lite Ace Van, which claimed the lives of the
vans driver and three (3) of its passengers, including a twomonth old baby, and caused physical injuries to five (5) of
the vans passengers. After trial, Sibayan was convicted
and sentenced to suffer the penalty of imprisonment for two
(2) years, four (4) months and one (1) day to four (4) years
and two (2) months. However, as there was a reservation
to file a separate civil action, no pronouncement of civil
liability was made by the municipal circuit trial court in its
decision promulgated on December 17, 1998.[2]
On October 20, 2000, petitioners filed a complaint for
damages against Sibayan, Viron Transit and its
President/Chairman, Virgilio Q. Rondaris, with the Regional
Trial Court of Quezon City, pursuant to their reservation to
file a separate civil action.[3] They cited therein the judgment
convicting Sibayan.
Viron Transit moved to dismiss the complaint on the
grounds of improper service of summons, prescription and
laches, and defective certification of non-forum shopping. It
also sought the dropping of Virgilio Q. Rondaris as
defendant in view of the separate personality of Viron
Transit from its officers.[4]
Petitioners opposed the motion to dismiss contending,
among others, that the right to file a separate action in this
case prescribes in ten (10) years reckoned from the finality

of the judgment in the criminal action. As there was no

appeal of the decision convicting Sibayan, the complaint
which was filed barely two (2) years thence was clearly filed
within the prescriptive period.
The trial court dismissed the complaint on the principal
ground that the cause of action had already prescribed.
According to the trial court, actions based on quasi delict,
as it construed petitioners cause of action to be, prescribe
four (4) years from the accrual of the cause of action.
Hence, notwithstanding the fact that petitioners reserved
the right to file a separate civil action, the complaint ought
to be dismissed on the ground of prescription.[5]
Improper service of summons was likewise cited as a
ground for dismissal of the complaint as summons was
served through a certain Jessica Ubalde of the legal
department without mentioning her designation or position.
Petitioners filed a motion for reconsideration pointing out
yet again that the complaint is not based on quasi delict but
on the final judgment of conviction in the criminal case
which prescribes ten (10) years from the finality of the
judgment.[6] The trial court denied petitioners motion for
reconsideration reiterating that petitioners cause of action
was based on quasi delict and had prescribed under Article
1146 of the Civil Code because the complaint was filed
more than four (4) years after the vehicular accident.[7] As
regards the improper service of summons, the trial court
reconsidered its ruling that the complaint ought to be
dismissed on this ground.

Petitioners filed a petition for certiorari with the Court of

Appeals which dismissed the same for error in the choice
or mode of appeal.[8] The appellate court also denied
petitioners motion for reconsideration reasoning that even
if the respondent trial court judge committed grave abuse of
discretion in issuing the order of dismissal, certiorari is still
not the permissible remedy as appeal was available to
petitioners and they failed to allege that the petition was
brought within the recognized exceptions for the allowance
of certiorari in lieu of appeal.[9]
In this petition, petitioners argue that a rigid application
of the rule that certiorari cannot be a substitute for appeal
will result in a judicial rejection of an existing obligation
arising from the criminal liability of private respondents.
Petitioners insist that the liability sought to be enforced in
the complaint arose ex delicto and is not based on quasi
delict. The trial court allegedly committed grave abuse of
discretion when it insisted that the cause of action invoked
by petitioners is based on quasi delict and concluded that
the action had prescribed. Since the action is based on the
criminal liability of private respondents, the cause of action
accrued from the finality of the judgment of conviction.
Assuming that their petition with the appellate court was
procedurally flawed, petitioners implore the Court to exempt
this case from the rigid operation of the rules as they
allegedly
have
a
legitimate
grievance
to
vindicate, i.e., damages for the deaths and physical injuries
caused by private respondents for which no civil liability had
been adjudged by reason of their reservation of the right to
file a separate civil action.

In their Comment[10] dated June 13, 2002, private

respondents insist that the dismissal of the complaint on the
ground of prescription was in order. They point out that the
averments in the complaint make out a cause of action
for quasi delict under Articles 2176 and 2180 of the Civil
Code. As such, the prescriptive period of four (4) years
should be reckoned from the time the accident took place.
Viron Transit also alleges that its subsidiary liability
cannot be enforced since Sibayan was not ordered to pay
damages in the criminal case. It is Viron Transits contention
that the subsidiary liability of the employer contemplated in
Article 103 of the Revised Penal Code presupposes a
situation where the civil aspect of the case was instituted in
the criminal case and no reservation to file a separate civil
case was made.
Private respondents likewise allege that the recourse to
the Court of Appeals via certiorari was improper as
petitioners should have appealed the adverse order of the
trial court.
Moreover, they point out several other
procedural lapses allegedly committed by petitioners, such
as lack of certification against forum-shopping; lack of
duplicate original or certified true copy of the assailed order
of the trial court; and non-indication of the full names and
addresses of petitioners in the petition.
Petitioners filed a Reply[11] dated September 14, 2002,
while private respondents filed a Rejoinder[12] dated
October 14, 2002, both in reiteration of their arguments.
We grant the petition.

Our Revised Penal Code provides that every person

criminally liable for a felony is also civilly liable.[13] Such civil
liability may consist of restitution, reparation of the damage
caused
and
indemnification
of
consequential
damages.[14] When a criminal action is instituted, the civil
liability arising from the offense is impliedly instituted with
the criminal action, subject to three notable
exceptions: first, when the injured party expressly waives
the
right
to
recover
damages
from
the
accused; second, when the offended party reserves his
right to have the civil damages determined in a separate
action in order to take full control and direction of the
prosecution of his cause; and third, when the injured party
actually exercises the right to maintain a private suit against
the offender by instituting a civil action prior to the filing of
the criminal case.
Notably, it was the 1985 Rules on Criminal Procedure,
as amended in 1988, which governed the institution of the
criminal action, as well as the reservation of the right to file
a separate civil action. Section 1, Rule 111 thereof states:
Section 1. Institution of criminal and civil actions.When a
criminal action is instituted, the civil action for the recovery
of civil liability is impliedly instituted with the criminal
action, unless the offended party waives the civil action,
reserves his right to institute it separately, or institutes the
civil action prior to the criminal action.
Such civil action includes recovery of indemnity under the
Revised Penal Code, and damages under Articles 32, 33,

34 and 2176 of the Civil Code of the Philippines arising

from the same act or omission of the accused.
A waiver of any of the civil actions extinguishes the others.
The institution of, or the reservation of the right to file, any
of said civil actions separately waives the others.
The reservation of the right to institute the separate civil
actions shall be made before the prosecution starts to
present its evidence and under circumstances affording
the offended party a reasonable opportunity to make such
reservation.
In no case may the offended party recover damages twice
for the same act or omission of the accused.
When the offended party seeks to enforce civil liability
against the accused by way of moral, nominal, temperate
or exemplary damages, the filing fees for such action as
provided in these Rules shall constitute a first lien on the
judgment except in an award for actual damages.
In cases wherein the amount of damages, other than
actual, is alleged in the complaint or information, the
corresponding filing fees shall be paid by the offended
party upon filing thereof in court for trial.
Petitioners expressly made a reservation of their right to
file a separate civil action as a result of the crime committed
by Sibayan. On account of this reservation, the municipal
circuit trial court, in its decision convicting Sibayan, did not
make any pronouncement as to the latters civil liability.

Predicating their claim on the judgment of conviction and

their reservation to file a separate civil action made in the
criminal case, petitioners filed a complaint for damages
against Sibayan, Viron Transit and its President/Chairman.
Petitioners assert that by the institution of the complaint,
they seek to recover private respondents civil liability
arising from crime. Unfortunately, based on its misreading
of the allegations in the complaint, the trial court dismissed
the same, declaring that petitioners cause of action was
based on quasi delict and should have been brought within
four (4) years from the time the cause of action
accrued, i.e., from the time of the accident.
A reading of the complaint reveals that the allegations
therein are consistent with petitioners claim that the action
was brought to recover civil liability arising from
crime. Although there are allegations of negligence on the
part of Sibayan and Viron Transit, such does not
necessarily mean that petitioners were pursuing a cause of
action based on quasi delict, considering that at the time of
the filing of the complaint, the cause of action ex quasi
delicto had already prescribed. Besides, in cases of
negligence, the offended party has the choice between an
action to enforce civil liability arising from crime under the
Revised Penal Code and an action for quasi delict under
the Civil Code.
An act or omission causing damage to another may give
rise to two separate civil liabilities on the part of the
offender, i.e., (1) civil liability ex delicto, under Article 100 of
the Revised Penal Code; and (2) independent civil
liabilities, such as those (a) not arising from an act or

omission complained of as a felony, e.g., culpa

contractual or obligations arising from law under Article 31
of the Civil Code, intentional torts under Articles 32 and 34,
and culpa aquiliana under Article 2176 of the Civil Code; or
(b) where the injured party is granted a right to file an action
independent and distinct from the criminal action under
Article 33 of the Civil Code.[15] Either of these liabilities may
be enforced against the offender subject to the caveat
under Article 2177 of the Civil Code that the plaintiff cannot
recover damages twice for the same act or omission of the
defendant and the similar proscription against double
recovery under the Rules above-quoted.
At the time of the filing of the complaint for damages in
this case, the cause of action ex quasi delicto had already
prescribed. Nonetheless, petitioners can pursue the
remaining avenue opened for them by their
reservation, i.e., the surviving cause of action ex
delicto. This is so because the prescription of the action ex
quasi delicto does not operate as a bar to an action to
enforce the civil liability arising from crime especially as the
latter action had been expressly reserved.
The case of Mendoza v. La Mallorca Bus
Company[16] was decided upon a similar set of facts.
Therein, the driver of La Mallorca Bus Company was
charged with reckless imprudence resulting to damage to
property. The plaintiff made an express reservation for the
filing of a separate civil action. The driver was convicted
which conviction was affirmed by this Court. Later, plaintiff
filed a separate civil action for damages based on quasi
delict which was ordered dismissed by the trial court upon

finding that the action was instituted more than six (6) years
from the date of the accident and thus, had already
prescribed. Subsequently, plaintiff instituted another action,
this time based on the subsidiary liability of the bus
company. The trial court dismissed the action holding that
the dismissal of the earlier civil case operated as a bar to
the filing of the action to enforce the bus companys
subsidiary liability.
We held that the dismissal of the action based on culpa
aquiliana is not a bar to the enforcement of the subsidiary
liability of the employer. Once there is a conviction for a
felony, final in character, the employer becomes subsidiarily
liable if the commission of the crime was in the discharge of
the duties of the employees. This is so because Article 103
of the Revised Penal Code operates with controlling force
to obviate the possibility of the aggrieved party being
deprived of indemnity even after the rendition of a final
judgment convicting the employee.
Seen in this light, the trial court should not have
dismissed the complaint on the ground of prescription, but
instead allowed the complaint for damages ex delicto to be
prosecuted on the merits, considering petitioners
allegations in their complaint, opposition to the motion to
dismiss[17] and motion for reconsideration[18] of the order of
dismissal, insisting that the action was to recover civil
liability arising from crime.
This does not offend the policy that the reservation or
institution of a separate civil action waives the other civil
actions. The rationale behind this rule is the avoidance of
multiple suits between the same litigants arising out of the

same act or omission of the offender.[19] However, since the

stale action for damages based on quasi delict should be
considered waived, there is no more occasion for
petitioners to file multiple suits against private respondents
as the only recourse available to them is to pursue
damages ex delicto. This interpretation is also consistent
with the bar against double recovery for obvious reasons.
Now the procedural issue. Admittedly, petitioners should
have appealed the order of dismissal of the trial court
instead of filing a petition for certiorari with the Court of
Appeals. Such procedural misstep, however, should be
exempted from the strict application of the rules in order to
promote their fundamental objective of securing substantial
justice.[20] We are loathe to deprive petitioners of the
indemnity to which they are entitled by law and by a final
judgment of conviction based solely on a technicality. It is
our duty to prevent such an injustice.[21]
WHEREFORE, judgment is hereby rendered SETTING
ASIDE the resolutions of the Court of Appeals dated
September 10, 2001 and January 9, 2002, respectively
dismissing the present action and denying petitioners
motion for reconsideration, as well as the orders of the
lower court dated February 26, 2001 and July 16, 2001. Let
the case be REMANDED to the trial court for further
proceedings.
SO ORDERED.